The initial filing of a divorce case may include the following documents:
- Summons. This document notifies the other spouse that a suit has been started. He or she has 21 days, if personally served in Michigan, to respond or a default may be taken (28 days if served by mail or if the other spouse lives outside of Michigan).
- Complaint. This document states the names of the parties, where, when, and by whom you were married, the names and birthdays of children (if any), the wife’s and husband’s names before marriage, the length of residence in the county and state, the date of separation, the grounds for divorce, a statement as to property, whether the wife is pregnant, and the relief requested. A party must reside in Michigan for at least 180 days and in the county where the suit is started for at least 10 days. There are some exceptions to the residency requirement.
- Affidavit of Service and Return of Service. This is filed when service is made.
- Affidavit of Previous Suit. This informs the court as to whether the parties have filed for divorce before or had any case in another court.
- Statement to the Friend of the Court. This is to inform the Friend of the Court of the essential facts (it is unnecessary in cases where Friend of the Court services are not required).
- Affidavit. Another affidavit lists the child’s or children’s residences during the past five years and states that no custody action involving the child is pending (it is only needed when minor children are involved).
- Record of Divorce. This is a statistical record required by the Michigan Department of Health.
- Injunction. This is only requested when needed to restrain a spouse from committing certain acts. Your attorney will explain this procedure to you in detail and ask if you want an injunction.
- Ex Parte Orders. These may be obtained for temporary custody, support, etc. A timely filed objection to the ex parte order will negate the effectiveness of the order until a hearing on the matter.
- Affidavit for Ex Parte Order. This sworn statement affirms that the facts stated to obtain the ex parte order are true.
- Circuit Court Filing Fee. There is also a charge for serving papers. Later on, there may be other costs for services, such as the cost of appraisers, actuaries, accountants, depositions, etc. You will be advised before any of these expenses are incurred, so you may negate them. There may also be Friend of the Court and judgment fees.
- Notice of Hearing, Praecipe, Motions, and $20 Filing Fee. These are required for any motion that requires a hearing. A motion is a request to the court for some type of relief. A praecipe is a court form requesting that the matter be set for hearing. Notice of hearing advises that a hearing will be held.
- Judgment of Divorce. This is the final document that grants the divorce and states the terms of the divorce. When there are children involved, a fee is required.
Procedure:
The plaintiff is the party who starts the lawsuit. The defendant is the person against whom the suit is filed. The family division of the circuit court resolves divorces. The office of the Friend of the Court makes recommendations for spousal support, child support, custody, and parenting time. This office also collects and distributes the spousal and child support payments. It may also request enforcement of court orders dealing with child and spousal support as well as parenting time. The court may use the Friend of the Court for other miscellaneous duties, including a recommendation on property distribution.
After the complaint and summons are filed and served, the defendant may file an answer to the complaint, which is a paragraph-by-paragraph response to the complaint. Once the answer is filed, the case is contested. If the defendant files no answer, an order of default is entered, indicating the defendant’s lack of response. The matter becomes an uncontested divorce case. If the case is contested, the defendant may not only answer the complaint but also file his or her own counterclaim. The plaintiff must answer the counterclaim.
The Court cannot grant a divorce in less than 60 days. When there are minor children, the parties must wait six months. However, the six-month period may be waived under certain circumstances. No divorce is granted without a court hearing to determine the truth of the statements made in the complaint.
Temporary orders for custody, child and spousal support, mortgage payments, medical payments, parenting time, injunctions, and other relief may be requested at any time after your case is started and before a judgment of divorce is entered. A temporary injunction can restrain a party from doing something. There are two types of injunctions to deal with violence: one authorizes immediate arrest (criminal); the other provides for an appearance before the judge to determine what action should be taken (civil). There is also an injunction restraining a party from selling, disposing of, or dissipating assets. Other types of injunctions may be requested. Child support, custody, mutual injunctions, and personal protection orders are usually granted to the plaintiff without a hearing. Other orders require a hearing.
Temporary orders for child support are usually based on a state-recommended formula. Generally, spousal and child support is based on need and ability to pay. The lifestyles of the parties are also taken into consideration. For child custody disputes, you will be advised to study the 11 specific factors listed in the Child Custody Act. The procedures and preparations for such a case are too involved for this discussion and must be left to further discussions with your attorney.
The court may also award temporary fees to assist a party with his or her costs of obtaining legal services. This is usually obtained in the same way as any other motion. Sometimes it may be part of a motion requesting other relief.