Michigan Divorce Procedures

Michigan Divorce Procedures

Complete overview of Michigan divorce laws for people considering a Michigan divorce or filing a Michigan divorce with issues to be resolved about child custody, child support, visitation and alimony.

Michigan Divorce Residency Requirements

In order to file your Complaint for Divorce in Michigan, you must make sure the Judicial Circuit Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Michigan residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

A judgment of divorce shall not be granted by a court in this state in an action for divorce unless the complainant or defendant has resided in this state for 180 days immediately preceding the filing of the complaint, the complainant or defendant has resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint.

The divorce is typically filed with in county in which the filing spouse lives.

(Michigan Compiled Laws – Section: 552.9)

Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of Michigan. It is most common that people file for a divorce in the county in which they live. If you are unsure of whether or not you meet the Michigan residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.

Michigan Grounds for Divorce

The Complaint for Divorce is the initial document filed with the Michigan court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

The court shall grant a divorce upon mutual consent or upon an allegation that there has been a breakdown of 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. In the complaint for divorce, the plaintiff does not need to make any other explanation of the grounds for divorce other than using the statutory language.

(Michigan Compiled Laws – Section: 552.6)

Every divorce case that is filed in the state of Michigan must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.

Michigan Uncontested Divorce

This information is an overview of the uncontested Michigan divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Michigan.

To file for divorce in Michigan, one spouse or the other must have lived in the state for the past 180 days and in the county where the action is filed for at least 10 days. Michigan is a No-Fault divorce state.

In Michigan, the person filing is called the Plaintiff; the person responding is called the Defendant. Divorce actions are filed in the county court.

In Michigan, a couple without children can be divorced in as little as 60 days, but when children are involved, a divorce cannot be granted in less than six months.

In Michigan, the Office of the Friend of the Court assists the court in divorce cases when the parties have minor child(ren), or they have one of more issues in dispute. The Friend of the Court does the following:

a) conducts investigations, holds hearings and makes recommendations on matters of property division, alimony, child support and visitation;
b) collects, processes and accounts for alimony and child support;
c) enforces court orders relating to alimony and child support.

The easiest and simplest route to divorce is a Consent Divorce. In this routine, the couple 1) must meet the Michigan residency requirements, and 2) agree a) to sign any necessary papers and attend any required hearings, b) about the division and distribution of all property, c) spousal support (either no support or support, how much and for how long) and d) child custody and support (which parent and how much).

In this arrangement, the couple follow these steps:

a) complete the necessary forms;
b) file the forms with the court clerk;
c) if there are children, both spouses agree to meet with the Friend of the Court, and provide any additional required papers and information, as requested;
d) the Plaintiff appears for a short hearing before the judge. (The Defendant may appear if he or she wants to.)

In a Consent Divorce, the Plaintiff must file the following forms:

a) A Complaint for Divorce, which starts the action. It includes statistical information about both parties, identifies the grounds, identifies minor children, establishes whether or not property is to be divided, whether support is sought.
b) A Verified Statement and Application for IV-D Services, which is filed if children are involved. The Verified Statement and Application is used by the Friend of the Court in collecting, recording and enforcing child support.
c) The Marital Settlement Agreement, which spells out the details of the spouses’ agreement. It includes the details of child custody, child support, heath care insurance and expenses, child visitation, the division of assets and liabilities, alimony as well as any provisions that are unique to the couple.
d) A Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) Affidavit, which establishes the legitimate home state of any minor children and is used in conjunction with the prevention of child abuse as well as parental kidnapping. This affidavit must be completed if there are minor children.
e) An Answer and Waiver, which establishes that the Defendant has received the Complaint for Divorce and agrees to let the action proceed.
f) A Judgment of Divorce, which ends the marriage.
g) A Record of Divorce or Annulment, which is an administrative form used to keep track of divorces in the state.

Some couples end marriages by way of a uncontested divorce. An uncontested divorce happens when 1) the Defendant simply ignores the action and does not file an Answer or 2) when he or she cannot or will not be located. Both situations then resolve themselves by default.

In an uncontested divorce, the Plaintiff must complete all of the forms filed in a Consent Divorce. In addition, however, he or she must file these forms:

> A Summons, which gives the Defendant 21 days to answer the Complaint if he or she is in Michigan and 28 days if he or she is out of state. The Summons puts the Defendant on record as being informed of his or her rights. The Summons and a copy of the Complaint are served on the Defendant, who accepts them. The person serving — a sheriff, deputy or process server — returns the Proof of Service form, which becomes part of the record of the case.

Other than the Summons, all other forms that must be delivered to the Defendant may be send by certified mail.

a) A Default Request, Affidavit, Entry and Judgment, which requests that the court enter a judgment when the Defendant fails to respond to the complaint within the allotted time.
b) A Request for Certificate of Military Service Status, which certifies that a spouse is or is not in a branch of the armed forces.

If the spouse is in the military, he or she may enjoy protections from divorce under the Servicemembers Civil Relief Act and may be able to postpone the divorce action. If he or she is not, the Default Request may be filed.

Sometimes a Defendant may file an Answer to the Complaint, then for one reason or another decide to let the case proceed as an uncontested divorce. In that case the Defendant must file a Stipulation to Withdraw Answer Order, which, when signed, permits the case to proceed uncontested.

If the parties reach agreement and file a Martial Settlement Agreement, the action can either move along as a Consent Divorce or a default divorce, which is now uncontested.

Between the filing, service and final decree, couples with children must meet with the Friend of the Court, who will require financial information about the parties.

After all the above steps have been taken, the Plaintiff must file a Notice of Hearing, which informs the Defendant of the time, date and place of the divorce hearing.

A contested divorce happens when the Defendant files an Answer to the Complaint challenging the allegations. Many times divorces that begin contested end uncontested because even as the case works through the court the spouses continue to negotiate and bargain.

In any event, a contested divorce begins with the Summons, the Complaint for Divorce, the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) Affidavit and the Verified Statement and Application for IV-D Services. These are the same forms used as described above in the uncontested divorce.

The course of a contested divorce is impossible to predict because both spouses move strategically, each for his or her own best advantage. However, if the Defendant contests the action, the Plaintiff may undertake discovery, which entails the subpoenaing of financial records as well as filing a Notice of Taking Records Deposition. At any point between the Answer and the a divorce trial, however, the couple who achieves an agreement can redirect the action along the route of the uncontested divorce.

When a spouse cannot or will not be found, the Plaintiff must make what is termed “a diligent search.” This search entails contacting or checking:

a) the telephone directory and directory assistance in the area where the missing spouse lives;
b) directory assistance in the area where the spouse was last known to reside or any area where he or she might be;
c) friends and relatives who might know the whereabouts of the missing spouse;
d) the post office in the area where the spouse last lived;
e) tax records in the county where the spouse was last known to have lived;
f) the Michigan Secretary of State to see of the missing spouse has a current driver’s license or registration;
g) any other sources that might produce a current address, such as landlords, former employers.

If the search produces an address, the missing spouse can be served. If not the Plaintiff must complete a Motion and Verification for Alternative Service, which informs the court of measures taken to locate the missing spouse and requests permission to publish the Summons.

The Plaintiff can then prepare an Order for Alternative Service, which can be used when the Plaintiff knows where his or her spouse is but cannot service him or her because he or she is dodging the process server, or an Order for Service by Publication/Posting and Notice of Action, which is used when location of the missing spouse is not known.

Serving by Order for Alternative Service means that the Complaint is delivered by first class mail, may be tacked to the door or delivered to a responsible member of the household.

Serving by Publication/Posting and Notice of Action means that Plaintiff may now publish the Complaint in a newspaper in the county of residence once a week for three weeks. After this, the court can proceed with the action in the manner of a default.

Michigan Simplified Divorce Procedures

There are mandatory official approved and simplified (fill-in-the-blank) forms available for all phases of the divorce process. These forms are contained in the official Michigan Supreme Court Administrative Office Forms Book and should be available from the Clerk of the Circuit Court in any Michigan county. In addition, the Michigan Friend of the Court Bureau is to supply each party in a divorce case with a pamphlet discussing the court procedures, the rights and responsibilities of the parties, the availability of mediation, human services, and joint custody.

[Michigan Court Rules 3.204 and Michigan Compiled Laws Annotated; Section 552.505].

Each state has its own unique filing procedure. When filing for divorce in Michigan, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the Michigan Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Michigan Laws and the filing requirements.

Michigan Property Division Factors

In Michigan, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Circuit Court within the Judgment of Divorce.

Michigan is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the Circuit Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Circuit Court to be fair.

The circuit court of this state may include in any decree of divorce or of separate maintenance entered in the circuit court appropriate provisions awarding to a party all or a portion of the property, either real or personal, owned by his or her spouse, as appears to the court to be equitable under all the circumstances of the case, if it appears from the evidence in the case that the party contributed to the acquisition, improvement, or accumulation of the property. The decree, upon becoming final, shall have the same force and effect as a quitclaim deed of the real estate, if any, or a bill of sale of the personal property, if any, given by the party’s spouse to the party.

(Michigan Compiled Laws – Section: 552.19, 552.101 and 552.401)

Since Michigan is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.

Michigan Spousal Support/Maintenance/Alimony Factors

In Michigan the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Circuit Court will order support from one spouse to the other on a case-by-case basis as follows:

At the time of the entry of a judgment of divorce or separate maintenance, if the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party and any children of the marriage as are committed to the care and custody of either party, the court may further award to either party the part of the real and personal estate of either party and spousal support out of the real and personal estate, to be paid to either party in gross or otherwise as the court considers just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.

(Michigan Compiled Laws – Section: 552.13, 552.23 and 552.452)

Michigan Child Custody Factors

In Michigan, when establishing a child custody order, the court will act in the best interests of the children and consider the following factors:

1. The love, affection, and other emotional ties existing between the parties involved and the child.

2. 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.

3. The capacity and disposition of the parties involved 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.

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

5. The permanence, as a family unit, of the existing or proposed custodial home or homes.

6. The moral fitness of the parties involved.

7. The mental and physical health of the parties involved.

8. The home, school, and community record of the child.

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

10. 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.

11. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

12. Any other factor considered by the court to be relevant to a particular child custody dispute.

(Michigan Compiled Laws – Section: 552.16 and 722.23)

In Michigan, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

Michigan Child Support Factors

Either parent may be ordered to provide a just and proper amount of child support. There is a Child Support Formula to be used as a guideline and it is presumed to be correct unless shown to be unjust or inappropriate under the circumstances in a particular case. This formula is contained in Michigan Compiled Laws Annotated, Section 552.519. The court may require the parent providing support to file a bond guaranteeing the support payments. Support may include health care, dental care, childcare, and education of the child. The Judgment of Divorce must include a provision that requires 1 or both of the parents to provide health care coverage, if such coverage is available at a reasonable cost as a benefit of employment. All payments of child support shall be ordered to be made through the Michigan Friend of the Court Bureau. Each parent will be required to keep the Michigan Friend of the Court Bureau informed of their address, sources of income, and health insurance coverage.

[Michigan Compiled Laws Annotated; Sections 552.15, 552.16, 552.452, and 552.519].

Michigan child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Michigan child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Michigan child support deviation factors that may be applicable to the situation.

Michigan Grandparent’s Rights

Grandparent Rights to Visitation: Visitation can only be granted when the parents’ marriage is declared invalid or dissolved or the court enters a decree of legal separation or legal custody of the child is given to a party other than the child’s parent. Michigan Statutes Annotated, Section 25.312(7b) [M.S.A. §25.312(7b)]. This is same as Michigan Compiled Laws Annotated, §722.27b. Additional affidavit required.

When Adoption Occurs: Visitation rights terminate upon adoption unless the adoption is by a stepparent.

Child Custody Statutes: Best interest of child considering: a) love, affection and other emotional ties existing between the parties and the child; b) the capacity and disposition of each to give love, affection, guidance and continuation of education and raising the child in its religion; c) the capacity and disposition of each to provide food, clothing and medical care; d) length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity; e) permanence as a family unit of the existing or proposed custodial home; f) moral fitness of the parties; g) mental and physical health of the parties and child; h) home, school and community record of the child; i) preference of the child, if of suitable age; j) willingness and ability of the parties to facilitate and encourage a relationship between the child and the other parent; and k) any other relevant factor. M.S.A. §25.312(3); M.C.L.A. §722.23.
Grandparent or other third party may only get custody if:

1) child’s biological parents were never married, and
2) the parent with custody dies or is missing and the other parent has not been granted custody, and
3) the person seeking custody is related within the 5th degree by marriage, blood, or adoption (grandparent or great-grandparent qualifies).

M.S.A. §25.312(6c)-(6e); M.C.L.A. §§722.26c-722.26e.

Parents May Choose: Yes

Michigan Military Divorce Laws

A Michigan military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From Michigan Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Michigan court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Michigan court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

a) You or your spouse must reside in Michigan
b) You or your spouse must be stationed in Michigan

Grounds for Michigan Military Divorce

The grounds for a military divorce in Michigan are the same as a civilian divorce.

Dividing the Property

Along with the normal Michigan property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In Michigan, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Michigan child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Michigan Child Support Guidelines

The Michigan child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Michigan child support order.

Michigan Child Support Guidelines

Income Share Model *: YES
Percent of Income Model *: NO
Worksheets Available: YES
Extraordinary Medical Expenses Add on: YES
Childcare Add on: YES
Secondary Education Support: YES
UIFSA: YES

* The Income Shares Model: Michigan child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the Michigan child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.

For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.

As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.

For example: It is not common for a custodial parent to be paying support to a non-custodial parent.

Michigan Child Support Definitions

The court may adjust the normal weekly child support award, of either or both parent’s share based upon the following:

1) If the non-custodial parent has the children more than 128 days per year.

The formula for determining the adjustment is as follows:

Formula:
( B x F ) – ( D x E ) / ( B + D )

A = The number of days the children spend with the Mother
B = The product of A multiplied by itself
C = The number of days the children spend with the Father
D = The product of C multiplied by itself
E = Mother’s Normal Weekly Support Obligation
F = Father’s Normal Weekly Support Obligation

2) Parent’s Weekly Child Care Expenses

The adjustment is as follows:

1. Parent’s total combined child care expense
2. Multiplied by number of weeks of child care
3. Less Child Care Credit received on last years I.R.S. tax return
4. Divided by 52
5. Multiplied by

Father’s Percentage Share of Net Income: For Father’s Adjustment
Mother’s Percentage Share of Net Income: For Mother’s Adjustment

The court may enter an order that deviates from the standard support formula if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate and sets forth in writing or on the record all of the following:

a) The support amount determined by application of the child support formula
b) How the support order deviates from the child support formula .
c) The value of property or other support awarded in lieu of the payment of child support, if applicable.
d) The reasons why application of the child support formula would be unjust or inappropriate in the case.

Michigan Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the Michigan Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Plaintiff

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Defendant

The spouse who does not initiate the Divorce with the court.

Court Name:
State of Michigan, __________ Judicial Circuit, __________ County

The proper name of the court in which a Divorce is filed in the state of Michigan. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Complaint for Divorce

The title and name of the legal document that will initiate the Michigan Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Judgment of Divorce

The title and name of the legal document that will finalize the Michigan Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
Office of the Clerk of the County Circuit Court

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

The only grounds for legal separation (separate maintenance) in Michigan is a breakdown of 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. There is no residency requirement specified in the statute. [Michigan Compiled Laws Annotated; Section 552.7].

Property Distribution:
Equitable Distribution

The applicable Michigan law that will dictate how property and debt is to be divided upon Divorce.

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