Frequently Asked Divorce Questions

Divorce is the legal way of dissolving a marriage. If the parties are unable to agree, then the court must provide for the following:

1. Division of property
2. Spousal support (alimony)
3. Child custody
4. Child support
5. Parenting time (visitation).

“No Fault” divorce in Michigan is defined as follows: “There has been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.” This applies to the issue of dissolving the marriage, only. If the parties contest the other issues, such as division of property, then fault can have a bearing on the outcome.

By statute, a court cannot grant a divorce in Michigan in less than 60 days. When minor children are involved, the waiting period increases to 6 months. However, upon a showing of good cause, a judge may waive the last 4 months. Where the parties cannot reach a settlement and proceed to trial, some cases may last well over a year to resolve. Hopefully, the new Family Law courts in Michigan will expedite cases.

A filing fee of $175 is paid to the circuit court clerk to start a divorce case with no children. An additional $80 friend of the court fee is required in a case with children. Most Oakland County divorce attorneys, as well as those in the Detroit metropolitan area charge hourly fees in the range of $250 to $500 per hour. As an Oakland County attorney, my hourly rate varies between $350 to $450 per hour depending on several factors, including: the amount and nature of the services rendered, the time and difficulty involved, the type and seriousness of the litigation, the size of the marital estate, and the degree of expertise required. My fee agreement calls for an initial retainer fee and initial costs to be paid at the beginning of the representation. Additional costs may include motion fees paid to the court, fees paid to process servers, appraisers, expert witnesses and court reporters. In cases where the parties are able to settle most of the issues themselves, an attorney might spend only 7 to 10 hours of billable time to obtain a divorce judgment for a client.

Mediation is an alternative way of trying to settle disputes in a divorce case before going to trial. A mediator is agreed upon by the lawyers or appointed by the judge. The mediator is usually another lawyer who is experienced in divorce law. The attorneys submit written mediation statements to the mediator. He or she then meets with the lawyers and their clients to discuss their positions on the issues and attempt to work out a settlement. If no agreement is reached, this process is not binding on the parties, nor is it admissible in court. Arbitration, on the other hand, is binding. The process is similar to mediation if the parties agree to conduct it informally. If not, then arbitration resembles more of a trial, and the arbitrator becomes more like a judge. The primary advantage with arbitration is that it may usually be scheduled sooner and on a date more certain than a trial.

In deciding child custody, the court must make a determination as to what is in the best interest of the children. The court must consider the following factors as outlined in the Michigan Child Custody Act:

• The love, affection and other emotional ties existing between the parties involved and the child.
• The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
• The capacity and disposition of the parties to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
• The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
• The permanence, as a family unit, of the existing or proposed custodial home.
• The moral fitness of the parties.
• The mental and physical health of the parties.
• The home, school, and community record of the child.
• The reasonable preference of the child, if the Court considers the child to be a sufficient age to express preference.
• The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
• Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
• Any other factor the Court considers relevant to a particular child custody dispute.

Most child custody awards are joint legal custody to both parents, with the physical custody of the child being awarded to one parent. However, either parent may request the Court to consider an award of shared physical custody. Making such a determination, the Court would look to the above factors and whether the parents would be able to cooperate and generally agree concerning important decisions effecting the welfare of the child. If the parents agreed on shared physical custody, then the Court would probably go along with it unless there was clear and convincing evidence that the welfare of the child would be adversely effected.

The Court is required to set support in an amount determined by application of the child support formula developed by the State Friend of the Court Bureau. The Court may adjust the amount of support where it would be “unjust or inappropriate” to follow the Formula. The same standard applies to the Friend of the Court office when making support recommendations. A support order agreed to by the parties that deviates from the child support formula may be ordered if the Court states on the record why the formula would be unjust, inappropriate, or that other property or support was awarded in lieu of the child support payment, if applicable. In Oakland County, as well as most other counties in Michigan, the court will closely scrutinize a proposed child support order, which deviates from the Guidelines.

Child support is payable until the child attains the age of 18 years or graduates from high school, but not beyond the age of 19 ½ years. However, if beyond 18 years old, the minor child must attend high school on a full time basis with a reasonable expectation of completing sufficient credits to graduate while residing full time with the parent receiving support.

Child support is always modifiable when there is a material change of circumstances. The Friend of the Court will petition the Court if they determine a modification is necessary. However, the change in support must exceed the minimum threshold amount of 10% of the existing order, or $5.00 per week whichever is less.

Alimony is now called spousal support. The Court may award alimony after considering the following factors:

1. The past relations and conduct of the parties
2. The length of the marriage
3. The ability of the parties to work
4. The source and amount of property awarded to the parties
5. The ability of the parties to pay alimony
6. The present situation of the parties
7. The needs of the parties
8. Whether either is responsible for the support of others.

Some forms of alimony, like child support, are modifiable. Other forms of alimony are not modifiable. Alimony, unlike child support, may be deductible to one spouse and included in the income of the other for income tax purposes. Much of the alimony or spousal support awarded today involves “rehabilitative alimony”. This is usually short-term alimony to enable a woman who has been a homemaker to retrain herself and acquire education and job skills so that she may re-enter the work force.

If you or your spouse has continuously resided in the state of Michigan for at least 180 days, a divorce complaint may be filed in the county where that person has continuously resided for 10 days prior to the filing of the complaint for divorce.