Michigan is a no-fault divorce state, but there is only one standard for a divorce, which is stated in MCL 552.6(1), which requires "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.
The party who files for the divorce is known as the plaintiff, and this person cannot state any other reason than the above requirement as a grounds for divorce. The plaintiff cannot provide anymore detail of why they are requesting the divorce. The defendant is the other spouse, and this party may either admit or deny the allegations of the plaintiff. Even if the defendant admits to the plaintiff's claim, a divorce judgment may not be entered until evidence is presented in open court that there has been a breakdown in the marriage relationship. A divorce ends a valid marriage.
For a court to grant a divorce judgment, it must have jurisdiction over the two parties, and the residency requirements must be met, which are listed in MCL 552.9(1), which states
(1) 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 and, except as otherwise provided in subsection (2), 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.
(2) A person may file a complaint for divorce in any county in the state without meeting the 10-day requirement set forth in subsection (1) if all of the following apply and are set forth in the complaint:
(a) The defendant was born in, or is a citizen of, a country other than the United States of America.
(b) The parties to the divorce action have a minor child or children.
(c) There is information that would allow the court to reasonably conclude that the minor child or children are at risk of being taken out of the United States of America and retained in another country by the defendant.
What if one spouse is out-of-state?
If one spouse is not a resident of Michigan, there are two different alternative basis for obtaining the proper authority for a court to grant a divorce
- the defendant must be "domiciled" in Michigan when the complaint for divorce is filed
- the defendant was domiciled in Michigan when the cause for divorce occured
- the defendant was personally served in Michigan, was served by publication, has voluntarily appeared in the action, or has been served with a copy of notice for appearance and an order for publication in Michigan or elsewhere
There are a number of other factors to when a court can exercise jurisdiction over a party depending upon that party's contacts with the State of Michigan.
What are ex-parte and temporary orders during a Michigan divorce case?
These are orders entered by the court during the pendency or at the beginning of the Michigan family law case.
A Michigan ex-parte, and a mutual restraining order usually seek to preserve assets such as avoiding the cancellation of insurance, withdrawal of retirement accounts, cancellation or excessive charging of credit cards, selling stocks/bonds and other financial instruments, utilities or the change of beneficiaries of certain policies. These are usually used in emergency situations, and the other party is not given notice prior to the order being entered. These orders should be used with caution, because many issues are better resolved by other means.
A temporary order in Michigan typically covers custody, parenting time, use of martial residence, child support, spousal support, attorney and expert witness fees and referral to the friend of the court. There are a number of other issues, which a temporary order may address.
A request for a temporary order can be made at anytime during the pendency of the case that sets forth facts supporting the relief requested.
If a court grants a temporary order it is in effect until modified or until the final judgment of divorce is granted. It is possible that the final judgment will simply preserve the temporary orders making them final.
What if one spouse is in the armed forces? How does this affect a Michigan divorce?
If one spouse is in the armed services (Army, Navy, Marine Cops, Air Force and Coast Guard) for a Michigan divorce, the Servicemembers Civil Relief Act will apply to the case. The purpose of this act is to allow servicemembers to devote their attention to defending the country, and not put them at a disadvantage when responding to civil suits like a divorce. The act will grant an automatic stay of 90 days and prohibits a court from taking certain actions. The one exception to this automatic stay is for support , which a hearing can be conducted without the presence of the service member. The service member may file a motion within a time limit to set aside any support order upon returning from service. It is important to inform your Michigan divorce lawyer if your spouse is a member of the armed services.
What if two spouses file for a Michigan divorce at the same time?
If parties file for divorce in two different counties in the State of Michigan, the first court to obtain jurisdiction will hear the case. Each county clerk uses a time stamp when someone files for divorce. If different states are involved, either state would be able to hear the case, but simple convenience of the parties may determine the right court, and if minor children are involved the home state of the child will determine which state is the right state.
What's an annulment, and how am I eligible in Michigan? - Is it better than a divorce?
In Michigan, an annulment declares a marriage void, because of consanguinity affinity either party was not capable in law of contracting at the time of the marriage, bigamy, fraud, duress and nonage.
The goal of an annulment is to get a ruling that a valid marriage never took place, while a divorce is to terminate a valid marriage. The advantages of an annulment over a divorce are a new marriage can now be first marriage, which can be important for certain religions, and the parties avoid the stigma of a divorce.
An annulment may also allow spousal support payments from a prior marriage that were terminated because of the annulled marriage to be reinstated along with pension, social security or insurance benefits that were terminated by the now annulled marriage. There are also no residency requirements and no mandatory waiting periods to get an annulment
The same property division laws of divorces apply to annulments. The court will attempt to make an equitable distribution of the property in the same fashion as a divorce proceeding. Permanent spousal support is generally not granted in annulment cases. Attorney fees may be sought in annulment actions in a similar fashion as divorce actions.
Children born of an annulled marriage are deemed to be legitimate.
Can a woman get back their old last name in a Michigan divorce?
If a wife wishes to take back her former last name as part of a Michigan divorce, this request may be included as part of the divorce proceedings. There are alternatives methods to get back your former last name, but some people find it more convenient to make it part of the divorce.
What if the defendant fails to respond to my filing for a divorce?
When a defendant fails to respond, the plaintiff may seek a default judgment. The defendant either has 21 or 28 days to respond depending upon how they were served with the divorce. The defendant may file to have the default judgment set aside for good cause.
Will a referee or judge hear my Michigan divorce case?
In Michigan, the chief of the circuit court may direct certain family law matters to be heard by a referee. A referee may hear any motion in Michigan except for a motion pertaining to an increase or decrease in spousal support. A referee may hear the following issues. This list is not mean to be complete.
- child support, family support, spousal support, custody, parenting time, paternity, property settlements, name change, objections to income withholding
Does it matter if I file first for a Michigan divorce?
By filing first, it will allows you to determine certain scheduling, selection of topics, and set the tone for the case with pre-trial motions and highlight significant issues and facts to be reviewed by the court. If the case goes to trial, the person who files first will be the the plaintiff, and they will be allowed to present their evidence first, and will allow the additional rebuttal closing argument. The other party will be the defendant.
Is separate maintenance the same as a divorce in Michigan?
In Michigan, an action for separate maintenance is filed in the same manner as a divorce, but a judgment for separate maintenance only provides for the property rights of the parties, support issues, custody issues and retirement benefits, but it does not dissolve the marriage/divorce the parties. This type of action can be useful if the party wishes to get clarity on these issues, and is not yet ready to dissolve the marriage. The defendant may counterclaim asking for a divorce, and, either party may file an amended complaint during this process asking for a divorce.
In Michigan, a divorce cannot be granted prior to the waiting period of 60 days without children, and 6 months with children. Most separate maintenance complaints are amended to be divorces or the cases is dismissed because the parties have agreed to stay together.