MICHIGAN DIVORCE OVERVIEW

Jennifer M PaineTo obtain a divorce in Michigan, one of the parties must have been a resident of the state for at least 180 days and of the county in which he or she files for divorce for at least 10 days prior to filing the complaint for divorce. These residency requirements are jurisdictional, meaning neither party can waive them (say, for example, if you only resided in county A for 9 days but nonetheless wanted a divorce in county A).

Michigan is a no-fault divorce state. The complaint for divorce need only allege that 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 of reconciliation. This does not mean, however, that Michigan does not consider fault. Fault is relevant in some instances in child custody, spousal support and property distribution.

The process for paternity, custody and support actions, without a divorce, as well as modifications, generally does not require a waiting period, but the same overall trial procedures often apply.

Read our detailed legal summary of Michigan including groups, residency, custody, child support, spousal support, and property to learn more.

Residency
The family division of the circuit court handles all divorce cases in Michigan. If you want to file for a divorce, one of the parties must have lived in Michigan for at least 180 days and in the county where the case will be filed for at least 10 days before filing. The person who starts the divorce action is called the plaintiff. The plaintiff must file a complaint asking the court to grant a divorce. There is a filing fee for this action. The filing fee is more if there are children of the marriage who are under the age of 18.

If there are no children under the age of 18, there is a 60 day waiting period before a divorce can be granted. In cases where there are minor children, there is a 6 month waiting period. However, if there is unusual hardship or compelling necessity, the court may waive the 6 month waiting period. This waiver can only be obtained by petitioning the court, and whether to waive the period is in the court's discretion.

Grounds
There are three distinct ways to legally end a marriage relationship in Michigan: divorce, separate maintenance and annulment. In a separate maintenance action, the parties are still technically married, but the court has already divided their property and debts and awarded spousal support, if any; these actions are usually maintained for health insurance or religious reasons, and they are rare. If the other party requests a divorce, the court will hear the divorce action instead. In an annulment action, the court issues an order stating that the marriage never legally occurred. The grounds for an annulment include bigamy, fraud, insanity and attempted marriage of a minor. Like separate maintenance actions, annulment actions are also rare. In either action, child custody and child support proceed just as if the action were a divorce.

People seeking a divorce are often confused about the concept of fault as used in Michigan law. Michigan is a no-fault divorce state. The complaint for divorce need only allege that 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 of reconciliation. This does not mean, however, that Michigan does not consider fault. Fault is relevant in some instances in child custody, spousal support and property distribution.

Read our detailed legal summary of Michigan including groups, residency, custody, child support, spousal support, and property to learn more.

Property
"Equitable distribution" governs property division in Michigan. The court starts with the presumption that the parties should each receive a "roughly congruent" share of the marital property. Marital property is undefined by statute, but case law defines it as any property (including debt) acquired during the marriage, from any source, but excludes property acquired during the marriage and any increased in value so long as the increase was passive. However, special rules apply to gifts (whether they were for the marriage or for the individual), inheritances, and commingled property, and you should consult with a lawyer to determine what your particular county and/or judge considers marital and separate property. There is no "bright-line" rule to divide property; instead, the court considers several factors, including the length of the marriage, the parties' needs, age, the value of the property, and so forth. Fault is, in general, relevant if the fault that caused the breakdown of the marriage is related to marital property (e.g., your spouse had a gambling habit and, as a result, acquired substantial debt by refinancing your marital home). The court may also invade each party's separate property if the other party contributed to the increase in value of that property or if the other party "needs" a share of the property, using the same multi-factored analysis. In the final divorce judgment, the court is required to divide the parties' marital property, stating specifically how to divide pensions, annuities, and other retirement accounts, that were acquired or accrued value during the marriage.

Alimony/Spousal Support

Alimony in Michigan is called spousal support by statute. The court may award temporary spousal support during the action or in the final judgment if the judge determines that the awarded party "needs" support and the other party is able to pay it. The court uses a multi-factored analysis similar to the analysis used to divide marital property. The factors the court considers include:
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 of and amount of property awarded to the parties.
5. The age, health, and needs of the parties.
6. The prior standard of living of the parties and whether either is responsible for the support of others.

7. Any other factor the court determines is relevant.

Using this analysis, the court will award spousal support for a specific time period, which may be short and rehabilitative or long-term and either modifiable or non-modifiable, depending on the factors in the case. Be sure to consult with your lawyer to determine what your court and/or judge generally awards as spousal support, if anything.

Joint Custody
Divorcing parties who have minor children generally have custody and support issues heard in the Friend of the Court, an agency-like body that assists the court with child custody, child support and (depending on the county) spousal support issues. Each county has the authority to establish how its Friend of the Court body operates, so be sure to consult with your lawyer for your particular county's procedures. Most often, the parties appear at a conciliation conference designed to assist them in determining a mutually acceptable custodial arrangement and parenting time schedule. If they cannot agree, the Friend of the Court will issue a recommendation to which either party may object within a certain time period. If a party objects, then a Friend of the Court referee or the judge will issue the custody and parenting time order. This is a temporary order, and in most cases it also becomes the final order, unless the party wishing to change it bring a motion to the court or the court independently determines the order is no longer in the child's best interests.

Custody

"Custody" is divided in two segments, "legal" and "physical." Usually, the parties share legal custody. This means the power to make the child's important life decisions, such as educational and medical decisions. Physical custody is the actual possession and time with the child. It is presumed by statute that each child deserves an equal relationship with both parents, and the court must inform the parties of the option for joint custody. However, the court must try to maintain the child's established custodial environment when rendering a custody decision. An established custodial environment is a physical and a psychological environment marked by security and stability, where the child naturally looks for comfort, guidance and necessities. If it exists, the party seeking custody must persuade by clear and convincing evidence that changing it is in the child's best interests; otherwise, the preponderance of evidence burden applies. Using any burden, before awarding or modifying custody or parenting time, the court must consider:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved 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.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care. . . .

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence . . . of the existing or proposed home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) 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 of the child and parents.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant

The Child Custody Act also contains a litmus test for custody modifications. There must be a demonstrable "proper cause" or "change in circumstances" sufficient to modify custody. A proper cause should be relevant to at least one of the best interest factors, whereas a change in circumstances should be relevant to the sum total of them. This proper cause or change in circumstances test is mandatory. Minor changes, such as a parent's relocation, that do not affect the child will not suffice because, as the appellate courts have explained, there will always be some changes in a child's behavior and background circumstances over time.

Child Support

Generally, the issue of the amount of child support is referred to the Friend of the Court. This body will conduct an investigation and make a recommendation as to the amount of child support. The Friend of the Court utilizes the Child Support Guidelines incorporated into a computer program and manual. The Friend of the Court will take into account many factors in making a recommendation, which are included in the text version as well as software version of the Child Support Guidelines. A non-custodial parent will generally pay a percentage of his or her net income after taxes.