Michigan/ Flint Divorce overview. 810-235-1970

Grounds for divorce. §1.2.

“[T]here has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”

The plaintiff may not include any other explanation of the grounds in the complaint. The defendant may admit or deny the grounds. The court may consider an admission but is not bound by it.

Jurisdiction; venue. §1.3.

On the filing date, one party must have resided in Michigan for at least 180 days and in the county of filing for at least 10 days. Residence means the place of a permanent home where the party intends to remain.

The 10-day county residency requirement need not be met if there is information that would allow the court to reasonably conclude that the parties’ minor children are at risk of being taken outside the U.S. and kept in a foreign country by a defendant who was born in a foreign country or who is not a U.S. citizen.

Initial filings. §§1.7–1.10.

The initial filing for a divorce without children includes a summons, a complaint, filing fees, and a record of divorce or annulment (some counties require filing at the time of entry of the judgment).

If there are minor children or a request for spousal support, a verified statement must be served on the other party and provided to the Friend of the Court. The initial filing for a divorce with minor children must also include information about custody proceedings and the names and birth dates of the minor children.

The complaint must include the following:

  • The statutory grounds for divorce, without further explanation.
  • The parties’ complete names and their names before marriage.
  • Residency information.
  • Whether a party is pregnant.
  • The required case caption language (see §1.8).
  • Whether there are minor children of the parties or minor children born during the marriage.
  • The complete names and birth dates of any minors involved in the action, including minor children of the parties and all children born during the marriage.
  • Whether there is property to be divided.
  • If a request for protection of property is made, facts sufficient to support the relief requested.
  • If spousal support is requested, a showing of the need for support and the other party’s ability to pay.
  • If there are minors or a request for child support, whether any Michigan court has continuing jurisdiction over the minor and, if so, the court and file number.
  • If custody of a minor is to be determined, the following must be 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 years, (3) names and present addresses of persons with whom the child has lived during that period, (4) whether the party has participated in other litigation concerning the custody of the child in Michigan or elsewhere, (5) whether the party knows of a proceeding that could affect the current child custody proceeding, and (6) whether the party knows of a person who is not a party to the proceedings who has physical custody of the child or claims custody or parenting time rights.

Filing fees may be waived. Fees and costs must be waived or suspended for persons receiving public assistance and indigent persons. The judge may hold a hearing to determine if the person is indigent. If the affidavit of indigency is not disputed, the waiver is mandatory.

Service. §§1.13–1.15.

Service is as provided in the general rules for service, with a copy to the Friend of the Court if there are minor children, a party is pregnant, or support is requested.

If there is a nonresident defendant and jurisdiction is under the long-arm statute, service is made as on a resident defendant. If jurisdiction is acquired by personal service with an order for appearance and publication, specific proofs are required (see §1.13).

Requirements for alternative service—see §1.14.

Requirements when a spouse is in the armed services—see §1.16.

Ex parte orders; temporary restraining orders. §§1.17–1.24.

The court must be satisfied by specific facts set forth in an affidavit or verified pleading that irreparable injury, loss, or damage will result from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be issued.

Orders are effective upon entry but may not be enforced until the other party is served with notice.

Ex parte orders for child support, custody, or parenting time must include the notice in MCR 3.207(B)(5).

Temporary restraining orders. §1.21.

Requirements for granting a temporary restraining order (TRO):

  • It clearly appears from specific facts shown in an affidavit or a verified pleading that immediate and irreparable injury, loss, or damage will result to the applicant from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be entered.
  • The applicant’s attorney certifies in writing any efforts to give notice and why notice should not be required.
  • A permanent record is made of nonwritten evidence, arguments, or representations supporting the application.

The order must be (1) endorsed with the date and time it is issued, (2) describe the injury and why it is irreparable, and (3) state why the order was granted without notice.

Domestic relations TROs (unlike others) need not expire within a fixed period, and the court need not set a date for further hearing.

For personal protection orders, see §1.22 and Mary M. Lovik, Domestic Violence Benchbook: A Guide to Civil and Criminal Proceedings (3d ed MJI 2004).

Temporary orders. §1.23.

May be entered at any time on the filing of a verified motion, after a hearing.

Must state effective date and whether it may be modified retroactively. The order remains in effect until modified or a final judgment or order is entered.

Domestic relations referee hearings; judicial review. §1.26.

The domestic relations referee must schedule a hearing within 14 days of receipt of the motion and must notify the parties’ attorneys or unrepresented parties. The notice must clearly state that the matter will be heard by a referee.

Within 21 days after the hearing, the domestic relations referee must make a statement of findings on the record or must submit a written report to the court, including findings and a summary of the testimony. A recommended order must also be submitted and served on the attorneys or unrepresented parties, and proof of service must be filed with the court.

A party has the right to judicial review of any matter that was the subject of a referee hearing and resulted in a statement of findings and a recommended order. The party must file and serve written objection and notice of a hearing on the parties or their attorneys within 21 days after the domestic relations referee’s recommended order was served.

If no such objections are filed, and the court approves, the domestic relations referee’s recommended order takes effect.

A judicial hearing must be held within 21 days after an objection is filed, unless the court extends the time for good cause.

The court hears the matter de novo, but the parties can stipulate that the judicial hearing be based solely on the record of the referee hearing.

Hearings on income withholding.

If the hearing concerns income withholding, the referee must arrange for a recommended order to be submitted to the court forthwith. If the recommended order is approved by the court, it must be given immediate effect.

Pretrial conferences. §§1.27–1.32.

The court at any time may require the parties’ attorneys to appear for a pretrial conference; more than one may be held. MCR 2.401 lists issues that may or should be considered at an early scheduling conference, in a scheduling order, or at a pretrial conference; see §§1.28–1.30.

Scheduling orders should be done after consultation with counsel. If this is not possible, the parties may file a written request for amendment within 14 days after entry of the order. Within 14 days after receiving the request, the court must schedule a new conference, enter a new order, or notify the parties in writing that it declines to amend the order.

Mediation; arbitration.

Friend of the Court mediation. §1.33.

Must be provided for custody and parenting time disputes; optional use by the parties.

Court rule mediation. §§1.34–1.38.

The court may refer any contested issue to mediation, but parties who are subject to personal protection orders or who are involved in child abuse or neglect proceedings may not be referred to mediation without a hearing.

Referral to mediation—by stipulation, a party’s written motion, or the court’s own motion.

Objection to mediation—within 14 days after notice of an order assigning the matter to mediation, by motion and notice of a hearing. The motion must be heard within 14 days unless the court orders otherwise, but it must be heard before the case is submitted to mediation.

Private mediation. §1.39.

On the parties’ stipulation, the court may order private mediation.

Arbitration. §§1.40–1.41.

The parties may agree in writing to resolve property, custody, and child support issues. Having agreed, the parties are bound by the decision. The court may vacate the award if

  • the award was procured by corruption, fraud, or other undue means
  • there was evident partiality by an arbitrator appointed as a neutral, corruption of an arbitrator, or misconduct prejudicing a party’s rights
  • the arbitrator exceeded his or her powers
  • the arbitrator refused to postpone the hearing on a showing of sufficient cause, refused to hear evidence material to the controversy, or otherwise conducted the hearing to substantially prejudice a party’s rights

Procedure for entering divorce judgments. §§1.44–1.53.

No divorce judgment may be entered without a hearing in open court at which proofs are taken. The testimony of at least one party must establish the statutory grounds and jurisdiction.

No proofs or testimony can be taken until 60 days after the complaint is filed, or 6 months if there are minor children. The court may not shorten the 60-day period, but may reduce the 6-month period to as few as 60 days if there is “unusual hardship or compelling necessity.”

The parties may preserve testimony during the waiting period.

Uncontested cases. §1.46.

An uncontested divorce judgment may be entered after an actual default or after the parties reach agreement.

After an agreement is reached, the parties may agree that one will withdraw pleadings and follow the default procedure, or, if the waiting period has passed, a settlement may be placed on the record and papers filed later.

Default judgments. §§1.46–1.50.

The grounds are same as in other cases (e.g., failure to plead or failure to comply with other court rules).

The party seeking a default files a default, notice of entry of default, and an affidavit of default, and sends notice of entry of default to all parties.

A default may be filed at any time after the grounds are established, but the waiting period or other requirements may delay entry of the default judgment.

If the defaulted party has appeared, the party seeking entry of the judgment must give the defaulted party written notice of the request for entry of the judgment at least seven days before the hearing. See §1.50 for what constitutes an appearance.

If the defendant has not appeared, a nonmilitary affidavit must be filed before the default judgment of divorce can be entered.

Contested cases.

The judge must state findings of fact and conclusions of law.

Entry of the judgment.

A party must submit the judgment for entry within 21 days after the court’s opinion or a settlement was placed on the record, unless the court grants an extension. The court may require that the judgment be submitted to the Friend of the Court for review.

Methods for entering a divorce judgment after trial or after the parties place the settlement on the record:

  • The court may sign the judgment when it grants the relief provided by the judgment.
  • After the parties approve the judgment’s form, the court signs the judgment if it complies with the court’s decision.
  • The parties may submit the judgment under the seven-day rule.
  • The parties may prepare a proposed judgment and file a motion for settlement.

Required provisions for divorce judgments.

All divorce judgments. §1.54.

  • A determination of each party’s rights in insurance on the life of the other party.
  • A release of dower rights.
  • A determination of each party’s rights in pension, annuity, or retirement benefits; contributions to a pension, annuity, or retirement plan; and contingent rights in unvested benefits.
  • The parties’ rights in property.
  • A provision granting, reserving, or denying spousal support.
  • If spousal support is nonmodifiable, a provision to that effect.

Divorces with minor children—additional required provisions. §1.55.

  • A prohibition against moving the children’s residence outside Michigan or, in the case of a joint custody arrangement, a relocation agreement or mandated language prohibiting moving the children’s residence more than 100 miles away.
  • A requirement that the custodial parent promptly notify the Friend of the Court in writing of any change of the children’s address.
  • A statement by the court declaring the children’s inherent rights and establishing the rights and duties as to the children’s custody, support, and parenting time.

Judgments awarding child or spousal support—additional required provisions. §§1.56–1.57.

Effective January 1, 2006, child or spousal support must be ordered in the latest version of the State Court Administrative Office (SCAO) Uniform Support Order. This form order must accompany any judgment or order affecting child or spousal support. If only child or spousal support is ordered, then only the Uniform Support Order may be used. The Uniform Order governs if the terms of the judgment or order conflict with the Uniform Order. The final judgment must either incorporate the Uniform Order by reference or state that none is required.

Modification of judgment provisions. §1.62.

Generally, divorce judgment provisions regarding child custody, parenting time, child support, and periodic spousal support are modifiable; property division and alimony in gross provisions are not. See §§3.24–3.25, §§4.16–4.17, §§5.25–5.33, and §§6.43–6.51 for modification of particular provisions.

Relief from judgments.

Rehearing or new trial. §1.64.

May be ordered on a party’s motion filed within 21 days of entry of the judgment or on the court’s initiative during the same period (the order on the court’s initiative must specify the grounds).

The motion will be granted if a party’s substantial rights are materially affected by

  • irregularity in the proceedings
  • the prevailing party’s fraud or misconduct
  • decision against the great weight of the evidence
  • newly discovered material evidence that could not with reasonable diligence have been discovered and produced at trial
  • the court’s error of law or mistake of fact
  • void judgment
  • any other reason justifying relief from the judgment

On a motion for a new trial, the court may

  • set aside the judgment
  • take additional testimony
  • amend findings of fact and conclusions of law
  • make new findings or conclusions and enter a new judgment

Amendment or correction. §1.65.

At any time, the court may amend the judgment to correct clerical or inadvertent errors; no change in circumstances is required.

A motion to amend on other grounds must be brought within 21 days after entry of the judgment.

Setting aside judgments. §§1.67–1.72.

The parties’ stipulations to set aside—generally valid.

The defendant over whom jurisdiction was acquired but who did not know of the divorce judgment must file a motion for relief within one year after entry of the judgment. He or she must show adequate reason for relief and that innocent third parties will not be prejudiced.

Otherwise, on a motion brought within one year, a judgment may be set aside

  • for mistake, inadvertence, surprise, or excusable neglect
  • for newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial
  • for fraud (intrinsic or extrinsic), misrepresentation, or other misconduct
  • for void judgment
  • because the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application
  • for any other reason justifying relief

See §§1.68–1.71 for further explanation of these grounds.

A motion to set aside a default judgment (except those based on lack of jurisdiction over the defendant) may be granted only if good cause is shown and an affidavit of meritorious defense is filed. Good cause requires a showing that

  • there was substantial defect or irregularity in proceedings
  • a reasonable excuse exists for the defendant’s failure to plead
  • allowing the default to stand would cause manifest injustice

The court may also set aside a default judgment under MCR 2.612, Relief from Judgment or Order.

Enforcement of divorce judgments. §§1.74–1.78.

The court has inherent authority as a court of equity to enforce its own directives. The court may enforce provisions in the divorce judgment that the parties agreed to even if the court would not have had authority to order them without the parties’ consent.

See the appropriate chapter for enforcement procedures for specific types of provisions.

Limitations periods.

Actions to enforce divorce judgments—10-year limitations period. The 10-year period begins to run when the cause of action accrues; for support orders enforced under the Support and Parenting Time Enforcement Act (SPTEA), the period begins to run when the last payment is due.

Actions to enforce divorce judgment liens on real property—15-year limitations period.

Foreign judgments.

Sister-state judgments—protected by the Full Faith and Credit Clause of the U.S. Constitution.

A foreign judgment filed under the Uniform Enforcement of Foreign Judgments Act is enforced like a Michigan judgment.

Sources

[1]Michigan Family Law Benchbook ch 1 (ICLE 2d ed 2006),  The uncited on this page are from this source.

http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=01   (last updated 12/16/2011)

CAP HEADLINES by Terry Bankert

[trb]

Terry Bankert Attoney 1000 Beach ST., Flint Mi 48503. 1-810-235-1970

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