Family law spans many different areas of law and a good family law attorney should be well versed, not just in family, but in real estate, banking, business matters, bankruptcy, tax, healthcare, worker’s compensation, and many other disciplines. There is a general misnomer that family law attorneys do not require as much legal experience or expertise as other practitioners and that is the farthest thing from the truth. In fact, improper handling of collateral matters in divorces is the leading cause of malpractice claims within the legal community. Many times an attorney who has failed to file the appropriate paperwork or do the necessary paperwork could later prevent their client from receiving their pension interest or other retirement funds, when they need it most.
At Chioini Group we believe that our office is able to operate at a level of sophistication within the family law realm that most general and sole practitioners are simply not capable of. This is not our conclusion; this is the conclusion of our clients and peers. Through years of experience we have accomplished a commitment to regular and consistent continued education, and a commitment to this specific discipline of law. Since our inception we have resolved thousands of divorce matters for our clients. We believe there are few attorneys with the wisdom that comes along with this experience. And besides experience, it takes considerable dedication to our clients and our ability to realize that our business is not only to advocate for our clients, but to make sure their needs are well attended to all while making sure our business model remains efficient and seamless. At Chioini Group we maintain large firm capabilities, but as a small office we believe we are more aptly suited to provide very effective and less expensive representation due to our maneuverability and lower fixed overhead.
One of our most important core principles is making sure that our clients are knowledgeable and informed, not only on their case but on the process as well. Even before we meet with you, we encourage you to review and understand the process.
A divorce can be an extraordinarily trying time and is no easy task, especially when children are involved. Coupled with the natural stress and emotions of this split is the added stress of navigating your way through a difficult and sometimes unfriendly court process that comes with it. For most, a divorce may be the one and only time that they will ever have to deal with the court system. At Chioini Group we identify with the hardships our clients are going through in their lives and work hand-in-hand with them to get them through this process as seamlessly and efficiently as possible. In essence, we try to remove as much stress from this process and show our clients that there is a light at the end of the tunnel. We pride ourselves on our status in the legal community as innovators and leaders in the realm of family law. This is a mark of distinction that we believe is a result of our extreme professionalism and staying true to our core values and principles throughout the years .
The most common area of family law that we routinely engage is in divorce. Many times this includes issues regarding support, custody and parenting time matters, which are all highlighted in the section below.
(This material is intended to answer only general questions about divorce, and is not intended to answer specific questions about your particular case and should not be construed as legal advice.)
- On What Grounds Can I File Divorce in Michigan?Open or Close
Michigan is a “no fault” divorce, state, meaning there is no need for any allocation of fault in order to file. The only requirement that is needed to file a divorce action is that one party believes that the “there has been a breakdown of the marriage to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.” Generally this is plead in the first court filing and will also be required to be recited under oath, before a divorce will be granted. Parties should know and understand that fault may still come into play in other issues of a divorce proceeding, including property settlement and alimony.
- Where Should I File for Divorce in Michigan?Open or Close
A party can file for divorce in the State of Michigan provided they have been a legal resident of this state for over 180 days prior to filing. A party can file in any county within the state that they have legally resided in for over 10 days prior to filing.
- What Is Needed to Start an Action for Divorce?Open or Close
Filing Fee. Before the court will accept any documents (pleadings) for a divorce, the filing party must pay the required filing fee. This fee is set by court rule and changes periodically. There is also a charge for serving papers. Later in the case, there may be other costs for services such as appraisers, actuaries, accountants, depositions, etc. You will be advised before any of these expenses are incurred so that you may negate them. There may also be Friend of the Court and judgment fees. Filing fees vary by jurisdiction.
Summons. This document notifies the other spouse that a suit has been started. He or she has 21 days if personally served in Michigan (28 days if served by mail or if the other spouse lives outside of Michigan) to respond, or a default may be taken.
Complaint. This document states the names of the parties; where, when, and by whom you were married; the names and birthdates of children (if any); the wife’s and the husband’s names before marriage; the length of residence in the county and the state; the date of separation; the grounds for divorce; a statement about 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 document is filed when service is made on the other party. In many amicable family matters, service can be affected by the party simply acknowledging that they have received a copy of the summons and complaint and filing such acknowledgment with the court.
Affidavit of Previous Suit. This generally appears at the top of the complaint and informs the court whether the parties have any other case(s) involving parties and/or the minor children with this or any another court.
Affidavit. This document lists the childrens’ 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 that is required by the Michigan Department of Health at the time a divorce matter is filed.
Injunctions. An injunction is requested only 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. An ex parte order 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 there is 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.
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. The judgment is the final document that grants the divorce and states the terms of the divorce.
- What Is the Procedure for Filing for a Divorce in Michigan?Open or Close
A divorce begins with one party filing what is called a complaint for Divorce in a Circuit Court of proper venue. Along with the Complaint (see below what must be included in the Complaint), the filing party must also provide/file a Summons, Record of Annulment, and pay the related filing fee. If children are involved there will be an additional filing fee for Friend of the Court services and a Verified Statement. Once the matter is filed, the Court will at assign the case to a Family Judge at random draw, and will give the file a case number. If the case involves children the case number will have the suffix “DM” and if no children are involved, it will have the suffix of “DO”. The case number is significant, because it generally needed for checking in at Court, or obtaining information on the file either online or at the Court Records.
Generally, a Complaint for Divorce must include the following information (note: might make the following an additional pull down menu)
- Statutory language that there has been a breakdown of the marriage.
- Complete names of parties
- Names of parties before the marriage
- Residency information
- Whether a party is pregnant
- Whether there are minor children or minor children born during the marriage
- The complete names and birth dates of any minors involved in the action, including, including all minor children of the parties and all minor children born during the marriage
- Whether there is property to be divided
- If a request for personal protection or protection of property is made, facts sufficient to support the relief requested.
- If spousal support is request, facts sufficient to show a need for support and the other party’s ability to pay.
- If the case involves a minor, or if children child support is requested, whether any Michigan Court has jurisdiction over the minor and, if so, the court and file number.
- If the custody of a minor is to be determined, the following information included in the complaint or in an attached affidavit: (1) the child’s present address; (2) places where the child has lived within the last five year; (3) names and present address of persons with whom the child has lived during that period; (4) whether the party has participated, as a party or witness or in another capacity, in another child custody proceeding with the child, and, if so, the court, the case number of the child custody proceeding, and the date of the child custody determination; (5) whether the party knows of a proceeding that could affect the current child custody proceeding, including a proceeding that could affect the current child custody proceeding, including a proceeding for enforcement or a proceeding relating to domestic violence, a protective order, termination of parental rights, or adoption, and, if so, the court, the case number, and the nature of the proceeding; and (6) the name and address of each person that the party knows who is not a party to the child custody proceeding and who has physical custody of the child or claims rights of legal custody or physical custody of or parenting time with the child.
- Upon filing a party is also required to provide notice of whether or not there is or has been a pending action filed or previously resolved involving the same parties with this court or any other court.
- How Long Will My Divorce Take in Michigan?Open or Close
A divorce cannot be granted by law in Michigan in less than 60 days. When there are minor children, parties must wait at least six (6) months. On some occasions these periods can be waived by motion to the court, however it is wise to ask your attorney. The length of time a Divorce proceeding takes is also highly dependent on the case flow of the Judge, specifically the court. Most importantly, how long a case takes is dependent on the parties and the attorneys ability to work toward a solution.
- What Should be Done While a Divorce is Pending?Open or Close
The period while the divorce is pending should be spent defining various issues and resolving them. Parties and their attorneys should also spending time assessing the value or net worth of the marital estate in comparison to various marital debts. During this same stage, parties may be required to conduct some amount of discovery to ascertain information they do not have in their possession. Likewise, parties may be required to engage appraisers, actuaries and accountants to assist in this function. During the same period, attorneys may sometimes use the help of a facilitator or mediator to assist with refining and resolving issues between parties without court intervention. Generally speaking, the quicker parties can resolve these issues the less money they will spend in litigation.
- What is Spousal Support (a.k.a Alimony)?Open or Close
Spousal Support is an obligation to provide financial support to one’s spouse during or after a divorce or separation. In Michigan, courts are given broad statutory authority to “award spousal support as is just and reasonable if the property award is insufficient for the suitable support of either party of the marriage. The court must consider the ability of either party to pay and the character and situation of the parties, and all other circumstances of the case (MCL 552.23(1)). Based on the broad authority vested in the court in regards to spousal support, a good divorce attorney should keep themselves apprised of local rulings and decisions (know both your court and your courtroom!) related to spousal support, so they know where their client stands.
There are two types of spousal support:
(1) Rehabilitative Spousal Support – Rehabilitative Spousal Support is temporary spousal support intended to help the dependent spouse make the transition to self-support. It is intended to allow the dependent spouse time to adjust to a lifestyle not based on combined incomes and to encourage the dependent spouse in seeking full-time employment and/or education.
(2) Permanent Spousal Support – Permanent Spousal Support is usually granted following a long-term marriage where the dependent spouse either by age, health, skill set or disparity of incomes, is not likely to be able to adequately support themselves without continued assistance.
- How Does the Court Evaluate Spousal Support?Open or Close
The factors that may be considered in evaluating spousal support include the following (in no specific order):
- Length of Marriage
- Ability of Parties to Work
- Source and Amount of Property Awarded to Parties
- Ages of the Parties
- Ability of the Parties to Pay Spousal Support
- Present Situation of the Parties
- Needs of the Parties
- Health of the Parties
- Prior Standard of Living of the Parties
- Whether Either Party is Responsible for the Support of Others
- Past Relations and Conduct of the Parties
- How is Child Custody Determined?Open or Close
The issue of child custody can many times be the most difficult part of any divorce matter. To understand custody better, it is important to know the two (2) components of custody: (1) Legal Custody and (2) Physical Custody. Legal Custody is being granted the rights in the important decisions in raising a child, including, but not limited to education, health, religion, etc. (2) Physical Custody relates to who will physically raise the child. Both types of custody may be designated as joint or sole custody.
Generally speaking, outside some extenuating circumstance, Legal Custody is almost always shared jointly. Physical Custody on the other hand is difficult to share equally. As such, sole custody may be designated to one parent, with the other parent exercising rights in parenting time. The important consideration regarding physical custody is that it is becoming more and more common that court’s are doing away with physical custody designations and simply calling it “shared custody” that allows for parenting time for each parent. The goal in all custody/parenting time arrangements is to maximize each parents’ schedule to allow substantial time with their child(ren).
All custody matters are evaluated in the terms of the best interest of the minor child (a.k.a Best Interest Factors) by weighing out the following considerations:
- (a) The love, affection, and other emotional ties existing between the parties involved and the child
- (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any
- (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of the state in place of medical care, and other material needs
- (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity
- (e) The permanence, as a family unit, of the existing or proposed custodial home or homes
- (f) The moral fitness of the parties involved
- (g) The mental and physical health of the parties involved
- (h) The home, school, and community record of the child
- (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference
- (j) 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
- (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child
- (l) Any other factor considered by the court to be relevant to a particular child custody dispute.
- How is Child Support Determined?Open or Close
Child support is determined based on a mathematical algorithm created by the Michigan Child Support Guidelines. The components of child support include but is not limited to: the age and number of children, parties’ respective incomes, number of overnights with the children, and other factors and offsets including insurance premium reductions from your wages. All of this information is entered into the Michigan Child Support Formula. Most seasoned divorce attorneys will have various types of software available to them that can be used to make the determination of what child support should be.
- Does My Child or Children Have Any Say in Which Parent They Live With?Open or Close
Generally speaking, your child has a limited say in their choice of living arrangement. Many courts and family law attorneys would explain the reason behind this is that many children are simply not mature enough to make a determination of where they want to live. Likewise, if a child is given the choice of where to live, they may not be doing so in their own best interest, as children tend to seek the place that is less restrictive and has less rules. Therefore, the court will allow some consideration of a child’s preference, provided they are of a sufficient age to express this preference. However, the court will still evaluate all the best interest factors in its decision.
- What is the Friend of the Court?Open or Close
The Friend of the Court (FOC) is the division of the court that provides various services to parties with minor children who are going through a divorce (or have custody, parenting, support matters within the court’s jurisdiction). Services provided by the FOC include: Alternative Dispute Resolution/Mediation, Investigative Services, Administrative of Child Support, Custody, Parenting Time, Insurance, and all matters affecting children and family matters within the jurisdiction of the Family Division of the Circuit Court. The FOC also has referees who have the authority to conduct hearings and hold certain hearings on behalf of the court.
Almost all parents involved in a legal proceeding will have regular and consistent contact with the Friend of the Court. There is a misconception that the Friend of the Court is for enforcement matters only, however, in reality it is a necessary and integral part of the Family Court that provides benefit for minor children and parties. The Friend of the Court is required to open a case file for all domestic matters, unless parties opt out of FOC services.
- Can I Opt Out of the Friend of the Court?Open or Close
Yes. Parties involved in a domestic matter at court may opt out of receiving Friend of the Court services provided both parties are in agreement and have signed and entered a SCAO form FOC 102, exempting the case from Friend of the Court Services. Less than 5% of all cases will not receive some level of Friend of the Court Services.
- What is the Effect of Opting Out of the Friend of the Court?Open or Close
If parties opt out of receiving Friend of the Court services, each party will have full responsibility for administration and enforcement of all rights and obligations related to their file.
- Are You Able to Modify Custody/Parenting Orders?Open or Close
Yes. All child custody and parenting time orders can be modified upon showing that since the last order there has been a material change in circumstances or proper cause exists to reevaluate these orders. Generally, the legal burden of the party seeking such change in custody or parenting time is less if there is no established custodial environment in either party. Established custodial environment occurs if a child over an appreciable time, looks naturally to the custodian for guidance, discipline, the necessities of life, and parental comfort. It is important to note that the established custodial environment may be with both parents.
- Are You Able to Modify Child Support Orders?Open or Close
Child support orders are always modifiable. At any given time a parties income may fluctuate up or down and require that child support be reevaluated as a result. Likewise, any change in the overall parenting time schedule may also result in revaluation. Parties are entitled to an automatic statutory review of their support every ____ years. Alternatively, parties my file a motion at any time they believe support must be reevaluated.
- Can Parties Reconcile After a Divorce Has Been Filed?Open or Close
It is quite common for divorce cases to end in reconciliation of parties with dismissal of the underlying divorce. Good divorce attorneys should assess the realistic possibility of reconciliation throughout the divorce process and not frustrate reconciliation attempts. A good attorney should also have a network of professionals, including counselors to assist in this process, if the issue presents itself.
- What is Legal Separation?Open or Close
In Michigan, there is a form of legal separation that is called “Separate Maintenance” which is filed in the same manner as a divorce. At the conclusion of an action for Separate Maintenance, property settlement will be resolved, however, parties will remain legally married. There are various reasons for separate maintenance which may include: insurance, age, or religious beliefs of parties. If one party files for Separate Maintenance, but the other party files for a divorce, a divorce court must proceed on the divorce.
- What is Mediation/Arbitration?Open or Close
Mediation (of facilitation, as it is sometimes called) is a form of alternative dispute resolution (ADR) and is used frequently in divorce and family law matters. Mediation generally involves a third-party attorney who is neutral and is well-versed in family law. The mediator will generally guide and assist parties to a reasonable solution without the need for court intervention. Many times mediators can very easily provide objective opinions on the case and the applicable law, because they are not involved in the case and have heard and reviewed the facts. There has been a continued movement for the use of facilitation/mediation in family law matters for many reasons, which include the following:
- Mediation is much more intimate than a court setting in which you may only have limited time to present your case. Court matters can also be extremely slow and protracted and a judge may not have an opportunity to know your facts as well as they are able to because of their heavy docket flow. Remember, one judge may have thousands of cases before them during any given year.
- Litigation can be extremely costly and may not always produce the best result
- Mediation favors some collaboration regarding a solution, where as many times a court’s ruling may not benefit either party and could be difficult to implement
Similar to mediation, arbitration is another form of alternative dispute resolution, but an arbitrator, unlike a mediator, has the power to make decisions binding. Many times arbitration is more cost-effective and efficient than the judicial process and provides the decision-maker with a much more intimate knowledge of the case.
- Why are Military Divorces Different from Regular Divorces?Open or Close
Military divorces can sometimes be complicated because various federal laws can be implicated. For instance, many military members who are on active duty are afforded certain protections from lawsuits. This can many times result in considerable difficulty if the other spouse is trying to leave the marriage and the military member continues to be abroad for long periods of time. Likewise, there are many times when military members are seeking to resolve family members, but cannot attend court. It is the job of a seasoned practitioner to assist with technology and other means of communication for that service member.
Military divorces may also require division of a military pension and allocation of survivor benefit coverage. These disciplines by themselves require a high degree of specialty as the military and its related components operate on its own separate rules and guidelines. And if these are not followed properly, can lead to considerable problems.
- What is a QDRO or EDRO?Open or Close
Many times a pension, 401K or other retirement savings accumulated during a marriage may require some level of division. However, many times it is impossible to cash out such accounts or there would be significant tax consequences and penalties that it would not be worth it. Parties can have the court enter what is a called a QDRO (Qualified Domestic Relations Order) which is a Court Order telling the plan administrator how to allocate or partition such accounts. QDROs are generally used for private employer accounts. An EDRO (Eligible Domestic Relations Order) is a similar instrument, but is used for government employees.
- When is a Business Evaluation Required in a Divorce?Open or Close
Marital property is broadly defined in Michigan as “property that is accumulated through the joint efforts of the parties during the marriage.” It generally includes any increase in net worth that may have occurred between the beginning and end of the marriage. As a result of this broad definition, may times a portion of a business that was built or tended to during the marriage will fall under the purview of marital property and will require some level of valuation. There are several methods used for valuation that your attorney should be familiar with. They might result in inequity, including “double-dipping.” Generally, use of an outside expert is required for valuation.
- What is a Pre-Nuptial/Ante-Nuptial?Open or Close
A pre-nuptial is an agreement that parties can enter into in advance of a marriage in which they can agree as to the disposition of their property and assets if or when a divorce occurs. The law on pre-nuptials in Michigan and throughout the country has evolved considerably in the last decade. As it currently stands, pre-nuptials are generally enforceable in Michigan, provided certain minimum requisites are met: they must be in writing, there must be a full disclosure of all assets, they must be entered into voluntarily and an attorney review by both parties. There can sometimes be a scenario where the life situations of parties have changed so extraordinarily and so much time has passed, that the court will not enforce the agreement. Pre-nuptials are a good step in saving parties the possibility of costly litigation in the event of a divorce. They are also highly favored for individuals or families who seek to protect a family inheritance or family business.
A post-nuptial or ante-nuptial agreement is an agreement that parties can enter into while married in which they agree how their property and assets will be divided following a divorce. Post-nuptial law is not yet fully evolved, however, the courts have favored upholding post-nuptial agreements made in contemplation of an impending divorce.