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FREQUENTLY ASKED QUESTIONS
Since my office provides a free initial phone consultation, some days we are asked the same question multiple times. Below is an example of the questions that are frequently asked about divorce law in Michigan and other Michigan family law issues.
How much does a divorce in Michigan cost?
Divorce attorneys generally charge at an hourly rate. Most Michigan divorce lawyers will require you to pay a retainer fee up front. The retainer fee is like a "deposit" on your case and the hourly rate works off the retainer. How much your divorce will cost, depends upon the filing fees, expenses and how much time your attorney spends on your case depending on the difficulty of your case.
My spouse is cheating on me, can I get a divorce in Michigan?
In Michigan, we are a “No Fault Divorce” State. Meaning, you are not required to allege “grounds” to receive a divorce in Michigan. It also means that if one party requests a divorce, it will be granted, regardless of whether or not the other party wants to get divorced. Your spouse cannot keep you from getting a divorce in Michigan, although he/she can make it very difficult and time consuming. Keep in mind that although an allegation of fault is not required in order to obtain a divorce in Michigan, fault still may be an issue in a Michigan divorce with respect to the division of property, spousal support and custody.
If I don’t sign anything, my spouse can’t get a divorce in Michigan. Right?
Wrong. If your spouse has properly filed a Summons and Complaint for Divorce in Michigan, and you have been properly served (which doesn't require you to sign anything), and you do nothing, your spouse can receive a Default Judgment of Divorce in Michigan, awarding him/her everything he/she requests, by virtue of your failure to respond to the Court in writing. See our Divorce page for more details.
Can my spouse and I share a divorce attorney in Michigan?
Not really. Basically, if only one Michigan divorce attorney is hired, that attorney can represent only one of you. However, it is possible for the other party to remain unrepresented. Ethically, a divorce lawyer in Michigan cannot represent both parties, as it would be a conflict of interest. So be aware, if there is only one attorney in your Michigan Divorce case, that attorney is only representing the party who hired him/her.
I heard there is no alimony in Michigan, is that correct?
That is not correct. Alimony is still alive and well in Michigan. In Michigan, alimony is referred to as “Spousal Support”. There are several factors involved in determining if and for how long spousal support should be awarded. In Michigan, spousal support is not awarded in every case, and is only awarded if it is requested and meets the proper factors. See our Spousal Support page for more details.
How do I get a legal separation in Michigan?
In Michigan we do not have anything called a “legal separation” where you file a paper and you are immediately “legally separated”. We do have a “Separate Maintenance” action, which is basically what people in Michigan are thinking about when they talk about a legal separation. See our Separation page for more information.
What is the difference between a Michigan contested divorce and a Michigan uncontested divorce?
A true uncontested divorce in Michigan is where one party files and the other party never files an answer and the party who files obtains a default judgment. In that sense, most cases are contested in some manner, whether it be over the issues of property settlement, spousal support, custody, parenting time or child support. Although most cases have some contested issues, in Michigan, most divorce cases settle before going to trial. See our Divorce page for more information.
If I leave the house, can my spouse charge me with abandonment in Michigan?
A divorce case in Michigan is not a criminal proceeding, therefore you cannot be “charged” with anything. If you leave your children alone and disappear, it is possible that the State of Michigan may charge you with criminal neglect or abuse due to abandonment. Otherwise the term "abandonment" is really not one used in a divorce proceeding. Although, there are certain things you need to know if you are considering leaving the martial home during the proceedings:
- If you leave the house for the short period of time during the pendency of the divorce proceeding, you will not lose your share of the equity in the house. However, the longer you are gone, the more likely you will lose your share of the equity.
- You may be placing yourself in a position where all your personal items that you leave at the home somehow “disappear” or are destroyed.
- If you leave the home, your spouse may file with the court for an “Order for Exclusive Occupancy” allowing that only he/she is entitled to stay in the home during the divorce proceeding, and that you cannot return to the home.
- If you leave the home during the pendency of the divorce, the court may still require you to pay part of the household bills during the divorce.
- If you leave the home during the pendency of the divorce, you may lose your claim for the home to be awarded to you.
- If you leave the home and you leave the children at the home with your spouse, you may lose the possibility of receiving custody of the children.
In Michigan, a legal annulment is not based upon the length of time you have been married. It is based upon either the inability to marry at the time of the marriage or fraud in the contract of marriage. Specifically, Michigan statutes provide that an annulment can only be granted in cases of (a) incapacity due to age; (b) prohibitively related; (c) bigamy; (d) incapacity due to a mental condition; (e) physical incapacity; (f) consent obtained by force or fraud; and (g) foreign law violations. So, very few marriages would actually qualify for an annulment. However, after you receive a legal divorce, your religion may provide for some form of religious annulment.
Generally, a Judge will not order a party to vacate the marital home during a Michigan divorce unless there is domestic violence or othere extreme circumstances involved. Most people live together during the divorce proceedings in Michigan. Although this may be emotionally difficult, it is generally more financially practical to live together until the judgment is entered or the home is sold or refinanced. If there is an issue of domestic violence, or if one party has established a residence elsewhere, the Judge may issue an Order of Exclusive Occupancy, which states that only one of the parties may live in the marital home during the proceeding. If your spouse leaves the martial home for a few days, and comes back to the home and you refuse him/her entrance to the home, the local police department will most likely enforce his/her ability to return to the home, unless there is an Order for Exclusive Occupancy or a Personal Protection Order which forbids him/her from coming to the home.
Generally, if there is no court order stating otherwise, and your spouse has only been gone a short time, the police will enforce his/her right to return to the home. Once you file for divorce in Michigan, it may be possible to receive an order for exclusive occupancy under certain circumstances such as him having left the home or due to domestic violence issues. If you have been a victim of violence from your spouse or he/she has made violent threats, it may be possible to receive a Personal Protection Order (PPO) from the court without filing for divorce. This type of order may include a provision that he/she is prohibited from appearing where you live.
If there is no court order regarding custody or parenting time (visitation) in Michigan (or from another state), then both of you technically have custody of the children and if he/she asks the police to enforce his right to spend time with the children, they will generally back him/her up. Remember that one of the ‘best interest of the child factors’ is: “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.” If you fail to encourage parenting time with the other parent, it may be used against you at a later date. Obviously, there are some situations where it would be appropriate to go to court to ask for a restriction on parenting time, but without a court order you should speak with an attorney before withholding parenting time from your spouse or ex spouse.
Contrary to popular belief, in Michigan the child must be an adult, age 18, before he/she can decide with whom they will live. Although the reasonable preference of the minor child is one of the ‘Best Interest of the Child Factors’, the Court takes that factor in consideration as equally as the other factors. So, while the preference of the child is taken into consideration, it is not given any more weight than any other factor. Practically, however, most police departments in Michigan will not enforce the return of a 16 year old to one parent when that 16 year old is with the other parent. See our Custody/Visitation page for more information.
There are specific statutes in Michigan that require a Judgment of Divorce with minor children to state that:
- You must petition the Court if you wish to change the domicile of the children from the state of Michigan.
- If the parents both have legal custody, and one of them wishes to move more than 100 miles away from the other parent, they must either have the agreement of the other party or petition the Court.
Sometimes, if a move will impact custody or parenting time, the Court could prohibit a move for even a lessor distance.
In certain circumstances you can petition the Court to allow a move outside of these geographic limitations. If both parents agree to allow the one parent to move, the Court will generally approve an agreed upon order.
My children’s mother/father has not paid child support in a while, can I withhold parenting time in Michigan?
The simple answer is, NO. As far as the court is concerned, child support and parenting time are two separate issues. If your children’s mother/fatherfails to pay child support, she/he can be held in contempt of court, or may even be charged with a felony. If you fail to provide the scheduled parenting time, you too can be held in contempt of court. Again, remember that one of the ‘best interest of the child factors’ is: “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.” If you fail to encourage parenting time with the other parent, it may be used against you at a later date.
Can I terminate the father's parental rights in Michigan?
No. In Michigan one can only terminate parental rights through either the adoption code (through a step-parent adoption) or through the criminal code, incident to a criminal child abuse or child neglect charge. So, it IS NOT POSSIBLE for one to voluntarily relinquish or terminate their parental rights. Nor is it possible for the other parent to ask the Court in Michigan to terminate the parental rights of the other parent.
What should I wear to Court?
The Court does not require you to dress in a suit or a dress. Casual attire is fine, just not too casual. Do not wear jeans, shorts, t-shirts or a baseball hat. Your attorney will advise you if you should dress any differently then stated here. Many Courts are now banning cell phones that can take pictures. If you do bring your pager or cell phone to Court, make sure you turn it off or put it on vibrate. Lastly, you are prohibited from bringing any thing that may be considered a weapon into the courthouse. Among the more obvious items, this also includes Swiss Army knives, scissors and perfume spray bottles. If you bring prohibited items, you will be required to either dispose of them, or return them to your vehicle.
LET US HELP YOU
This above is not intended to be legal advice, and is only a brief overview of this area of law. If you have any questions regarding your family law matter, contact us today. An experienced Michigan family law attorney will discuss your legal needs and provide you with information to protect you and your family for years to come. There is no charge for your initial phone consultation.
Representing divorce and family law clients in
Oakland, Wayne and Macomb Counties.
ATTORNEY ELLEN PAYNTER
West Bloomfield Main Office
Troy Satellite Office
Monday through Friday
****The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.****
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