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General Michigan Divorce Information
Divorces in Michigan fall into two categories: those involving the Friend of the Court and those that do not. The Friend of the Court is an agency-like body that assists the Family Division of the Circuit Court with child custody and parenting time, child support and (depending on the county) spousal support.
Each county has the authority to establish how its Friend of the Court operates, but, in general, in each county the Friend of the Court investigates, recommends orders and enforces orders for child custody, parenting time and support.
Both categories have these in common:
To obtain a divorce in Michigan, one of the parties must have resided in Michigan for at least 180 days and in the county in which he or she files for divorce for at least 10 days prior to filing. These residency requirements are jurisdictional, meaning neither party can waive them (for example, if you only resided in county A for 9 days, you could not file 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.
There is a filing fee of $150 for a divorce without children and a $230 for a divorce with children, but the parties may petition the court to waive these fees based on poverty.
There is a waiting period of 60 days for a divorce without children and a waiting period of 6 months for a divorce with children. However, if there is unusual hardship or compelling necessity, the court may waive the waiting period.
Michigan Divorce Property Division
“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 any property (including debt) acquired during the marriage, from any source, and not property acquired before the marriage and passive increases in the value of that property. However, special rules apply to gifts (whether they were for the marriage or for the individual), inheritances, and commingled 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.
Property negotiation consumes most of the waiting period.
Child Custody, Support and Alimony in Michigan
In addition, for Friend of the Court cases or cases involving children or support:
Alimony in Michigan is called “spousal support.” The court may award temporary spousal support during the action and rehabilitative or permanent support in the final judgment if the judge determines that the awarded party “needs” support and the other party is able to pay it
Custody has two components: legal custody and physical custody. 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. (Because the term physical custody suggests the other parent has no time with the child, courts increasingly call physical custody “allocation of parenting time.”) The court must presume each child deserves an equal relationship with both parents, and the court must inform the parties of the option for joint custody. The court must also try to maintain the child’s established custodial environment.
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.
Any custody decision must be in the child’s best interests, considering the love, bond, home and school environment, capacity and disposition of the parties to provide for the child, religion, if any, history of care-giving, willingness to foster and encourage a relationship with the other parent, domestic violence, and any other fact relevant to the child.
Child support is based on the Michigan Child Support Formula. The MCSF calculates support using each parent’s income and overnights with the child, with credit given for actual childcare and healthcare costs.
The Friend of the Court utilizes a computer program with the MCSF to calculate each party’s support obligation, if any. The paying parent may ask to deviate from the formula amount if it is “unjust or inappropriate.”
Parties may opt out of the Friend of the Court system, but should only after a thorough consultation with an attorney because the Friend of the Court offers order enforcement, monitoring, counseling and complaint services for a nominal fee, and often for free.
Whether or not a Friend of the Court case, Michigan courts encourage settlements! The court will order (or strongly encourage) the parties to attend mediation, conciliation, arbitration, negotiation, and any other appropriate alternate dispute resolution mechanism before a trial.
Divorce trials are rare, though necessary to protect a parent’s constitutional rights to his child and his property, and these alternate dispute resolution mechanisms are sometimes free, always creative and allow clients and attorneys to fashion a divorce judgment tailored to the family’s needs.