Divorce: An Introduction - Michigan Law Services, PLLC - Shelby Township Divorce Attorneys, Macomb County Michigan PDF Print E-mail

Divorce practice and procedure vary extensively from county to county and even within individual counties, depending on the assigned judge, the organization of the county Friend of the Court, and local practice.  Divorce is a very stressful and confusing time in the parties lives.  The attorneys at Michigan Law Services, PLLC view a successful case, in the context of a divorce, as one arriving at an equitable and mutually tolerable agreement for a reasonable and affordable cost.  Whether the marriage was 20 years or under one year, there may be issues involved that will need to be addressed.  A mutually tolerable agreement reduces the prospect for continuing postjudgment litigation, particularly valued when children are involved.

 

Each divorce matter is as unique as the parties themselves.

Every divorce case involves individuals with their own particular situation.  A good attorney will offer the advice a client needs in their particular situation.  Knowledge of local practice and analysis of individual client situations is done to determine the best course of action for the commencement of the proceedings and ongoing management of the case.

Procedure

Filing the paperwork with the Circuit Court.

A divorce itself begins with the filing of a complaint and complaint for divorce.  In some cases, orders may be entered with the court at the commencement of the case, such as injunctions for the disposal of marrital property.  At your initial consultation, decisions will be made about when to file, sometimes where to file, and whether to seek interim and sometimes ex parte orders.  Cases that involve domestic violence require special attention, since securing the safety of the victim and any children is of the highest priority. A divorce will ultimately be granted under the no-fault standard, with virtually no exception.

Serving the Spouse

Sometimes the other spouse is aware of the filing and has arranged for counsel.  Often, however, that is not the case.  Then the other spouse needs to be notified and provided with a reasonable opportunity to obtain counsel.  In most instances, service occurs by acknowledgment or through counsel, although at times a process server is involved.  Usually counsel is obtained and both parties prepare themselves for moving forward. Before moving forward, parties have to accept the divorce, an acceptance that may take some time, particularly for a noninitiating party who may not want the divorce.

If you have been served with divorce papers, you have only 21 days (if personally served) or 28 days (if served by mail) to respond and protect your rights.

Discovery

Depending on the particulars of your case, discovery is something that may or may not occur.  Discovery in divorce cases is designed to give the parties the necessary financial information to fairly divide their property.  There are some cases where discovery may have a broader purpose.  If your case is an uncontested divorce (i.e. one where both sides want the same outcome and there is very little dispute over issues involved) discovery, although always advisable, may not be necessary.  If however your case is a contested divorce (i.e. there are issues involved that may require negotiations between the sides or judicial intervention) there is a good likelihood of discovery being a part of your case.  Discovery may take place in different forms such as interrogatories, subpoenas, and depositions.

Negotiations and Scheduling

Most cases involve a series of scheduling and settlement events with the court.  Cases can settle at various stages.  Most courts have an early event with various names such as pretrial, early intervention conference, or conciliation conference.  At most of these events, a schedule is laid out for the proceedings, decisions are made about Friend of the Court referrals, and discovery deadlines are set.  Most courts have a later event, most commonly called a settlement conference.  By this stage, it is expected that the case will be ready for settlement or referral for late stage mediation.  Also at this time, a trial date is set, as well as firm dates for any further discovery, exhibit exchange, or witness identification, if permitted.

A divorce without minor children cannot be completed in less than 60 days and is usually resolved within 4-6 months.  A divorce with minor children cannot be completed in less than 6 months (although the court may grant special permission to complete in under 6 months in narrow circumstances) and typically is completed within 1 year.

 

Alternative Dispute Resolutions (ADR)

Alternative dispute resolution, mostly mediation, is widely used in domestic cases.  The type, timing, and role of mediation varies significantly, depending primarily on local practice and procedure.  Mediation can occur before filing, early in the proceedings, or later, after settlement conference.  It can be evaluative, with a written recommendation, or facilitative, confidential and without recommendation.  It can be with attorneys and parties, sometimes just parties, present together or apart, with one mediator and occasionally comediators.  Mediators have varying backgrounds, although most are attorneys or mental health professionals.  Different mediation styles and mediation formats can be successful and resolve the vast majority of cases.

Another method of alternative dispute resolution is the collaborative divorce.  In the collaborative process, the parties and counsel commit to reaching agreement before filing divorce.  The process involves a series of four-way meetings, with clients and counsel, to negotiate the issues. Neutral experts are involved to advise the parties jointly in areas such as parenting and finance. Only after an agreement is reached is the divorce filed, the process then becoming merely a formality.

Judgment of Divorce

The legal procedure concludes with entry of a judgment of divorce.  In the vast majority of cases, there is a settlement, sometimes reached early on, often reached in mediation, and at times not reached until the eve of trial.  Settlement is highly encouraged by judges and practitioners for many reasons, including the value of parties settling their own differences, the certainty of outcome, the greater acceptance of the result, and the lower legal costs.  When there are children, it is important for parents to learn to negotiate in a different way to avoid ongoing litigation involving the family.

The legal document for the settlement itself is the judgment of divorce.  To finalize a judgment, a brief court hearing is required.  Consent judgments of divorce are routinely approved by the judge.  In those few cases where trial is required, entry of judgment follows a ruling by the court on the disputed issues.  The parties are divorced when the judgment is signed and filed with the clerk.

Postjudgment Issues

There are often postjudgment executory provisions which should be monitored.  These may include final allocation of household goods, transfer of motor vehicles, proper establishment of child support or spousal support accounts, sale of realty, allocation of retirement plan interests by qualified domestic relations orders (QDROs), payment of joint debts, transfer of intangible accounts, and life insurance arrangements.

Call Michigan Law Services, PLLC at 586-991-1SUE (1783) today to schedule a free 30 minute consultation on your divorce matter.  Our family attorneys have the skill and experience to get the best results possible in your case.  Our attorneys do not believe in a high-pressure, adversarial approach that can drive unnecessary cost and emotional pain in divorce cases.  However, they are willing and able to take the serious and assertive action that gets results.  For every client, we focus on preventing costly missteps people make under stress, and on forming a sound, workable action plan.

 

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