Any individual wishing to start a domestic relation action must file the correct papers according to specific rules (Michigan Court Rules). There may be many complicated issues or rules involved in a domestic relation case. Although the court cannot require a party to use an attorney to start or defend an action, it may be advisable to have an attorney file the correct papers and follow specific rules. Every domestic relation matter begins with the plaintiff filing a complaint or petition, which asks the court to grant an order. For example, a complaint may ask the court to grant a divorce, provide for child or spousal support, start an out-of-state support collection effort, or grant an order for custody of a child.
- The defendant is the person whom the complaint is filed against. The court rules provide that the defendant is to be served with a copy of the complaint and summons.
- The summons is a document, which legally asks the person complained against to answer the complaint. This must be delivered to that person in such a way as to give them notice of the action against them. The most typical ways to give notice are for a third party to personally hand the papers to the defendant or by sending them as required by Michigan Court Rule. If the person served does not file an answer to the complaint within the time permitted by Michigan Court Rule, they may lose the right to have their concerns heard by the court. This could result in the court entering an order giving the Plaintiff everything he or she requested in the complaint.
A divorce begins when one or both parties decide there is a breakdown of the marriage relationship and resolve to end it. A person wanting to end his or her marriage must have a circuit court enter an order ending the marriage. To grant the divorce, the court must find that there has been a breakdown in the marriage relationship to the extent that the parties cannot live together as husband and wife. At least one of the parties must appear in court to show that this breakdown really does exist. In Michigan, a divorce can be granted even if one of the parties does not want the divorce.
A divorce ends the legal relationship between a husband and wife. The divorce does not end the family relationship, even though the relationship will change. Many decisions must be made before a divorce is granted.
These decisions may include:
- Who will make decisions, provide daily guidance and take care of the children? (Custody)
- How much time will children spend with each parent? (Physical custody and/or parenting time)
- How should the property gathered during the marriage be divided? (Property settlement)
- How will financial responsibilities for the children be divided? (Child support)
- What amount, if any, should one party contribute towards the support of the other, either permanently or temporarily? (Spousal support-alimony)
- How will the children's medical, dental and other health care expenses be paid? (Health care coverage)
- Will the wife take back her maiden name? (Restoration of maiden name)
- Will children be allowed to move from the State of Michigan? (Domicile)
The person bringing the action or his or her attorney must give copies of all papers filed in a case to the Friend of the Court. The Friend of the Court office will make parenting time and child support recommendations on custody, if the circuit court orders the office to do so.
- Ex-Parte Interim Orders (Orders entered by the court without the benefit of a hearing)
- In some cases a court may immediately enter a child support order upon the request of a plaintiff or defendant. The party directed by the court to make payments may request the court to hold a hearing to change its ex-parte interim order by filing a motion within 14 days after they receive the order. If a motion is not filed within 14 days, the order automatically becomes a temporary order.
- Temporary Orders
- After the complaint has been filed, matters such as temporary custody, visitation and amount of support and in some cases, spousal support, need to be decided, Either party, or in some cases the Friend of the Court, may file a motion with the court asking for appropriate orders. If a hearing before a referee or judge is scheduled, both parties will be notified of the time and place. On that date, they can present their position to the court. The decision made at that hearing by the court is written down by one of the attorneys. This is given to the judge for entry (signing the order), and made an order of the court. NOTE: Only a judge can enter orders or judgments; a referee can hear motions, but can only propose recommended orders to the judge.
- Reconciliation and Dismissals
Not every divorce matter that is started ends in a divorce. If the parties are attempting to work out their differences and wish to have enforcement of their court orders suspended, they must provide the court and the Friend of the Court with written notice of their RECONCILIATION. A reconciliation notice does not dismiss a divorce action.
If the parties have resolved their differences and wish to stop the divorce action, they must file an Order of Dismissal with the circuit court and provide a copy the Friend of the Court.
In either situation, if children have received public assistance, plans to pay any back child support must be made with the Friend of the Court.
- Judgment of Divorce
A judgment contains the orders of the court, which address support, visitation, custody, property and other related issues.
There is a 60-day waiting period for divorce cases without children and a 6-month waiting period for divorces where there are minor children.
After the waiting period is over the judge may grant a divorce. The judge can change some of the sections in the divorce judgment after it has been entered (See modification of judgment - page 5). Once a judgment has been entered, parties must comply with its terms.
If a party is dissatisfied with the judgment, he of she may wish to contact an attorney. Once an order has been entered, a party has 21 days in which to file an appeal.
- Modification of a Judgment
After a judgment has been entered in a divorce action, there are some orders that can be modified (changed). These could include custody, parenting time, support, and change of domicile. A change can only occur if:
- the parties have submitted a signed agreement with the Friend of the Court, appear for scheduled appointment, order is entered with the court; OR
- a motion has been filed, a hearing has been held and the court enters an order granting a change.
The Friend of the Court has a responsibility to petition the court in certain circumstances for child support and parenting time modification (see child support section & parenting time sections).