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 filed on your behalf at the courthouse. This document will inform both the court and your spouse of basic allegations such as where you live, date of marriage, name and age of children, etc. This document will also inform both the court and your spouse that you are asking to be granted a divorce. The Summons and Complaint may also state that you are asking for child support and/or spousal support. This is the document that is “served” on the other spouse. Despite what you see on television dramas, usually the other spouse will cooperatively agree to accept this document from your attorney. If your spouse refuses to accept service, then your attorney will hire a professional “service processor” who will locate your spouse, wherever they may be, and will hand deliver the document.
Ex Parte Protection Orders
An Ex Parte Protection Order is also sometimes referred to as an Injunction. In most cases, the receiving of a Summons and Complaint is an unhappy event for the other party. Sometimes, one of the parties will make a rash and retaliatory decision to drain bank accounts, cancel credit cards, cancel insurance coverage, etc. An Ex Parte Protection Order asks the court to issue an immediate Order preventing the other spouse from taking such a retaliatory action. Usually, your attorney will have the Ex Parte Protection Order already signed by the judge before serving the Summons and Complaint on your spouse. Therefore, your spouse will be served with both the Summons and Complaint and the Ex Parte Protection Order at the very same time. Then, if one party does take a retaliatory action, it will be in violation of the court’s Order and your attorney will then be able to seek enforcement of the Order with the judge.
Answer to the Summons and Complaint
As stated above, the Summons and Complaint makes very basic allegations, such as where you live, date of marriage, name and age of children, etc. The other party then answers these allegations with an admission or denial. For instance, if the Summons and Complaint says you were married on June 1, 1990, and if that is true, then the other party will answer that allegation by stating “Admitted as true.” If there is an allegation that says one party should be awarded spousal support and if the other party does not agree with that, then they will answer that allegation by replying “Denied as untrue.” The whole process of answering the Summons and Complaint is rather dry and perfunctory, but it will inform both the court and the other party of the basic areas of disagreement (if any). There are also many instances where one party makes their allegations in their Summons and Complaint and the other party answers the Complaint by admitting to every allegation.
Early Intervention Conference at the Friend of the Court
If the divorce proceeding involves minor children under the age of 18, then there will automatically be an Early Intervention Conference at the Friend of the Court. The purpose of this hearing is to inform the court of any issues so that the court can immediately begin addressing such issues. For instance, if the parties file for divorce in May, and they are already in disagreement about where the minor children will be attending school beginning the following September, the Early Intervention Conference, which may well take place in July, will address this immediate issue. Additional purposes of the Early Intervention Conference are to inform the parties of the role that the Friend of the Court will play both during and after the finalization of a divorce. The Early Intervention Conference is presided over by a Friend of the Court referee. The referee is an attorney who is very much a judicial officer. The referee, from the very beginning, will place a high emphasis on instructing the parties to act civilly and in the best interest of the minor children.
Pretrial Conference/Status Conference/Settlement Conference
Your divorce case will be heard by a Michigan circuit court judge. The circuit court judge will be presiding over hundreds of cases in addition to yours. She is therefore under significant pressure to “manage the docket.” What that means is that the judge needs to be continually applying pressure to move all the cases along. The court will set Pretrial Conferences (also called Status or Settlement Conferences) for the purpose of being informed of the progress of a case. A judge will want to know with specificity what is happening to move the case forward and will then issue Orders accordingly. For instance, if the parties inform the judge that they continue to be in stark disagreement as to the value of a piece of real estate, the judge may likely order the parties to have a professional appraisal performed. The judge will issue deadlines that certain tasks must be completed by.
Discovery is a process whereby each party has the absolute right to “discover” everything they desire to know about the other party, the finances of the parties, etc. Discovery often starts with the submission of what is called Interrogatories to the other party. Interrogatories are a lengthy set of questions that the other party must respond to. Their response is not optional. For instance, an Interrogatory question may ask the other party “Please provide the name and account number of every financial account that you have held in your name over the past five years.” While the other party might not like this question and may not like expending the considerable effort required to answer this question, they are under a court Order to do so. Conversely, you, too, may be required to answer Interrogatories that your spouse wants answered. Like your spouse, you must provide honest answers. Also during discovery, your attorney has the right to send out Subpoenas. For instance, a Subpoena may be sent to the opposing party’s employer or bank so that you may directly verify financial information. Subpoenas are also excellent tools with which to find hidden assets. A well-qualified family law attorney will know how to conduct discovery so that you may learn everything you need to know about the opposing party. Finally, discovery allows your attorney to take the deposition of your spouse or other parties that may have important information concerning your case. A deposition is a type of court hearing that takes place at your attorney’s office. The deposed party is sworn in and a court reporter will type everything that is testified to. The deposed party must then answer questions posed to them. For instance, your attorney may ask why a certain financial account was rapidly depleted. The opposing party must answer this question truthfully.
The fact of the matter is, 97% of all divorce proceedings will result in a settlement without the necessity of a trial. Clients will frequently say “You don’t know my spouse, I’m in the three percent that’s going to trial.” Even in those cases, 97% of the time, there will be a settlement. When a settlement is reached, your attorney and your spouse’s attorney will cooperatively create a “Consent Judgment of Divorce.” This document will detail the terms and conditions of every last item and issue of the marriage. The Judgment of Divorce will address finances, custody, spousal and child support, real estate, etc. There should never be any loose ends after a Judgment of Divorce is agreed upon. Once you and your spouse sign the Judgment of Divorce, the document is then presented to the judge for her signature. Even if you and your spouse are in complete agreement and have signed the Judgment of Divorce, you are not officially divorced until the judge signs the document.
As stated above, it is very rare in even the most contentious cases, that the parties would need to conduct a trial. Unfortunately, in two or three percent of family law cases, the parties simply cannot come to an agreement. In those instances, a trial will be conducted. At the trial, the judge will listen to witnesses, review documents, etc. More often than not, a divorce trial will be stretched out over multiple court days. It is not unusual to have a judge listen to perhaps two hours of testimony and then pause the trial, ordering a continuation of the trial a week or two later. As you can imagine, this is a frustrating process. At the conclusion of a trial, the judge will render an opinion. The judge’s opinion will address every issue of the divorce, such as assets and debt, real estate, custody, spousal and child support, etc. After the attorneys are in possession of the judge’s opinion, they will then work cooperatively in creating a Judgment of Divorce which memorializes the judge’s opinion.
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