Divorce and Custody: Frequently Asked Questions

Chapter 1: Divorce Process

 

What is a divorce?
A divorce is a legal process where the marriage is ended. Once the divorce is granted the parties have the legal status of a single person.

 

Does Michigan have legal separation?
No. This is the number one most frequently asked question in my office. Most people believe that this is a true statement. Michigan does have a separate maintenance statute (see below). A few southern states do have legal separation. Many divorcing couples believe that they are 'legally separated' after one of them has filed for divorce. This is not true. Michigan does not require couples to separate when a divorce is filed. Most judges will require that the couple to separate upon the granting of the divorce.

 

What is separate Maintenance?
Separate Maintenance is a process much like divorce. It accomplishes everything that a divorce does in regard to property settlement and child issues. The only difference is that the parties are still legally married after the judgment is entered. They can not re-marry unless a divorce is granted. The vast majority of separate maintenance cases filed end up being converted to a divorce before they are finalized.

 

What is an Annulment? Can I have my marriage annuled?
An annulment is a legal process that places the parties back into the status they were in before the marriage. It is a judicial ruling that a valid marriage never took place because of a defect existing when the parties were married. It is not a divorce or separate maintenance. The requirements for annulment in Michigan are somewhat strict. They are as follows:

 

 

Where one or both of the parties was already married at the time of this marriage;
Where the parties are related within certain degrees of consanguinity or affinity;
Where one or both of the parties were under legal age when the marriage took place;
Where one or both of the parties was mentally incompetent;
Where fraud or duress existed;
Where one or both of the parties was afflicted with a venereal disease;
Sterility or impotency;
Other grounds, such as where the marriage is a sham. Lack of consummation is generally not a valid basis.

 


Is Michigan a "no fault" state?
Yes. That is to say, no showing of fault is required to obtain a divorce. One of the parties only has to allege that the marriage is broken down to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. However, fault CAN be a factor for the court to consider when dividing property and awarding custody of children. The courts will usually require that the fault be significant before they will move off of the 50/50 division standard. Most judges will not consider your spouse's extramarital affair to be significant. Often times in a short term marriage, the court will seek to place the parties back into the position they were in before the marriage.

 

What if we reconcile? Do we still have to complete the case?
No. Each party has an independent right to have the case finalized. But, if you each decide that you wish the case to be dismissed, the court will always grant your request. The court has a strong preference toward saving marriages.

 

Can the court force us into marital counseling?
Yes. However, this is very, very rare. I am not aware of a West Michigan judge who will order this.

 

Do you have a list of issues that I should be thinking about?
Yes. The first part of the list is for all cases. I have then listed additional issues for cases involving children.

 

Personal property division;
Real estate issues;
Pensions; IRA, CDs, 401k, QDROs, misc. investments;
Vehicles of all types; boats, trailers, etc;
Income taxes;
Bankruptcy issues;
Mis-conduct of spouse in regard to hiding or destroying assets;
Joint obligations, including debts;
Restoration of prior name;
Life insurance (whole & term policies);
Attorney fees and costs and expenses of the divorce;
Spousal support (alimony);
COBRA benefits

 


For cases with children:


Custody;
Parenting time;
Child support and day care expenses;
Medical expenses and insurance;
Child tax exemptions;
College education; summer camps, special situations;
Life insurance to protect support

 


I don't want to be divorced. Can I stop the divorce?
No. Each party has an absolute right to have the case finalized. This right was granted when the so-called ‘no-fault' laws came into effect.

Do you have questions?


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