Plaintiff – the person who files for the divorce;
Defendant – the person responding to the divorce (also may be called the counter-plaintiff if he or she files a counterclaim for divorce).
In Michigan, every divorce case follows the same basic procedure; however, not every case will proceed to trial, as most cases settle before a trial is necessary and a settlement is placed on the record at or before the time of trial.
A divorce without minor children cannot be finalized until the 61st day from the date the complaint was filed. A divorce case with minor children cannot be finalized less than six months after the complaint is filed without special permission by the court.
In either situation, each case starts out the same way:
1. A complaint for divorce is filed setting out the facts and circumstances of the case and typically several orders will be submitted for approval by the assigned judge. They are:
- A mutual restraining order — which prohibits either party from disposing of any assets or incurring further debt during the pendency of the case;
- A temporary order regarding custody, parenting time and child support — which usually awards the parties joint legal and physical custody of the minor children, equal rights of parenting time and no child support if the parties are still residing together. If they have separated, usually the parent who is living with the children will be awarded temporary physical custody and, if circumstances warrant, temporary child support during the pendency of the case.
2. Service of process: The plaintiff must provide notice to the defendant that a complaint for divorce has been filed. This is accomplished by having the defendant served with the papers. Service can be obtained personally by a process server or by certified mail, restricted delivery. Personal service is the preferred method; however, there are other options available if your spouse is avoiding service.
3. Within 21 days of being served, the defendant must file a formal answer to the complaint for divorce. The answer will specifically address each of the allegations in the complaint and often state what is contested in the case. A failure to answer the complaint timely can result in a negative outcome for the defendant such as loss of property, custody or a money judgment. If you are a defendant, always protect your rights by contacting an attorney immediately after receiving notice of a legal proceeding.
4. Discovery during a divorce proceeding is a process by which the parties exchange information to verify facts and discover information about each other. There are three types of discovery that an attorney will typically use:
- Interrogatories — which are written questions that must be answered under oath and within a given period of time. If a party lies in their answers to interrogatories they can be subject to a perjury charge.
- Deposition — live testimony of a party or a witness with a court reporter present to record the proceeding.
- Subpoenas — typically a request to produce documents that is served on a business, employer, financial entity or accountant, to produce records concerning financial accounts or income of a party.
5. Status or case management conference: This is usually the first court appearance at which the parties will appear. The purpose of this court appearance is usually to schedule dates and obtain a timeline from the court for the conclusion of the case.
6. Early intervention conference: If your case involves minor children, the first court appearance is followed by an early intervention conference (EIC) in some counties. The purpose of this conference is to meet with the friend of the court referee assigned to your case and schedule dates and potential referrals regarding custody, parenting time and support.
7. SMILE (Start Making It Livable for Everyone) Program (this step only applies to cases in Oakland and Macomb counties). After the EIC the parties are required to attend a class that will be hosted by one of the family court judges and a psychologist. This presentation takes approximately one and a half hours. The Wayne County equivalent of this program is called Kids First.
8. Mediation: Mediation is a nonbinding informal process with a third, neutral attorney who listens to both parties’ positions and attempts to facilitate a settlement. Mediation is helpful in many cases to resolve the issues in a less costly, time-saving, manner.
9. Settlement conference: If mediation is not successful, the court will schedule a settlement conference before the judge in an attempt to see if the parties can settle the case. If mediation is successful, typically the settlement conference date will serve as the date your case is finalized and a judgment of divorce entered.
10. Trial/arbitration: If a case proceeds to trial, the judge will make a determination regarding the disputed issues after both sides present their arguments. Sometimes, in lieu of going to trial before a judge, the parties will agree to go to voluntary binding arbitration. The arbitrator will act as the judge and make a final determination regarding all issues submitted to binding arbitration. It is very important to note that arbitration is binding with limited rights to appeal a bad decision. However, most cases, but not all, settle before going to trial or arbitration.