Divorce and the Duty to Respond
If you are served with a divorce complaint, you have a duty to respond. In Michigan, you are required to respond to the divorce complaint with an answer that must be filed within 21-days of the date you are served with the complaint for divorce. If you do not respond, a default may be entered and you will not be heard prior to entry of an Order or Judgment of Divorce on matters such as marital property, retirement assets, child custody, parenting time, child support, and spousal support (alimony). It is imperative that you take immediate action and seek advice from one of our divorce lawyers.
The Divorce Complaint and Waiting Period
The divorce complaint is the first pleading filed in a divorce case. If you received a divorce complaint, after reading a divorce complaint, do not panic and contact a divorce attorney to help you understand what the complaint means. In short, the complaint sets out the state requirements for divorce. This means it will contain statements that there has been a breakdown of the marital relationship, address of the parties, there is property to be divided, there may be a claim for spousal support, child support, custody, parenting time, and a few other requests to the court. Please know, at this stage, these are allegations, not orders, and it does not mean everything requested will be granted. You must file your answer contesting each and every allegation and if necessary, filing a counter-complaint for divorce.
Once the answer to the complaint is filed, Michigan mandates a statutory waiting period for divorces. This simply means that a Judgment of Divorce (the closing of your divorce case) cannot be entered by the Court until the statutory period expires. When a divorce includes minor children, the statutory waiting period is 180 days. When a divorce does not include minor children, the statutory waiting period is 60 days.
Motions for Temporary Orders
If you are served with a divorce complaint, it is fairly common that you may find numerous motions with the complaint for divorce. These motions can include things such as Motions for Temporary Custody or Parenting Time, Temporary Restraining Orders, Temporary Spousal Support, Exclusive Use of the Marital Home, and other such motions. You must also respond to each of these motions as required and appear in court on the date and time set for hearing on the motions. Contact one of our divorce lawyers for assistance in answering such motions. The consequences of not answering such motions can be dire and leave you without a voice in court.
Sometimes your spouse's attorney has filed an emergency Ex Parte Motion and attached a copy of an Ex Parte Order. Ex Parte means that an expedited order has been requested without having to wait for you to appear in court to answer the motion. Some examples of Ex Parte Orders are spousal support, custody, parenting time, use of the marital home, and orders to freeze accounts or bar action as to property or assets. While Ex Parte Orders are less common, they are orders you can still contest even though they may have been entered by the court as an order. To contest these orders, you will have 14-days from the date you are served with them to file an objection. You will need to seek the assistance of an experienced divorce lawyer to file the proper objections and set a hearing date for the judge to rule on the objections. It is imperative that you not wait and take immediate action. If you do not respond, these orders will remain in place and potentially work against you in the divorce process.
The Marital Estate
Our divorce lawyers represent the best interests of our clients involved in a divorce. One of the many questions we receive is what is the marital estate. In short, the marital estate is everything you and your spouse obtained during the marriage regardless of who purchased it or with what funds it was purchased. The marital estate encompasses the marital home, vehicles, ATVs, jewelry, real property, business ventures, checking and savings accounts, retirements and pensions, and even pets. You are entitled to an equitable division of all marital property obtained during the marriage.
Non-Marital Property. As a general rule, you are entitled to keep property you obtained prior to the divorce. You will need to consult one of our experienced divorce lawyers to discuss the status of non-marital property. Numerous factors can affect the status of non-marital property such as commingling of funds, payment/maintenance by the non-ownership spouse on the property, increases in equity during the marriage, and changes in deeds or titles. One spouse may make a claim to non-marital property and you will need to know immediately what your rights are and defend any attempt to take property that was purchased prior to the marriage.
Post-Judgment Issues After a Divorce Judgment Has Been Entered
After your Judgment of Divorce is entered by the court and your case closed, it may not always mean the end of your legal difficulties with your former spouse. Issues arise with failure to pay debts as ordered, failure to pay spousal support, failure to turn over property awarded in the divorce, and failure to properly transfer retirement assets to name a few. These issues can be addressed in what are called post-judgment motions.
Post-judgment motions include motions to enforce the judgment of divorce and require action by your former spouse. Motions to hold a former spouse in contempt for violation of the court order (i.e., the Judgment of Divorce) and motions to show cause. These motions are designed to enable you to enforce the judgment of divorce as worded and each carries with it different remedies available for having to enforce the Judgment of Divorce. If these issues arise, you will need to contact our divorce lawyers for assistance in protecting your rights and ensuring the matters are resolved fairly.
Uncontested divorces while not frequent, do present a more cost-effective and quicker resolution to your divorce case. It is always better for the parties to decide and agree upon the contents and provisions contained in their Judgment of Divorce than to have the Court make the decision based on evidence presented. In uncontested divorces, both parties must agree on every aspect and the question is, what needs to be included in the divorce and what documents must be filed in order to open and close the divorce case as quickly as possible.
Having one of our experienced divorce attorneys assist you will ensure that your rights are protected, benefits to being the plaintiff and controlling the speed with which the case progresses, all of the property, custody, and support considerations you will need to know, and filing of the Judgment of Divorce and Uniform Child Support or Spousal Support Orders if necessary.
Separate maintenance is an alternative to getting a divorce where couples do not want to divorce but, cannot continue living together. It’s sometimes used to continue health insurance coverage for an unemployed or retired spouse, after separation.
Separate maintenance is a judgment that awards child custody, child support, parenting time, spousal support, and divides property. However, you and your spouse are still legally married. Both you and your spouse must agree to separate maintenance.
Separate maintenance is very similar in most respects to a judgment of divorce and is filed in the same manner with the same waiting periods. You will not be required to file income tax returns as married or filing separately but rather, you will file separate income tax returns as single or head of the household.
The separate maintenance judgment can be changed over time. Some couples choose to convert separate maintenance to a judgment of divorce. Courts have differing results on this issue with some requiring a new divorce complaint must be filed ad others allowing the parties to sign an order converting the Separate Maintenance judgment to a judgment of divorce.
If you have questions regarding Separate Maintenance, you will need to contact one of our experienced divorce lawyers to obtain advice and guidance designed to ensure such a decision is the right one for you.
“Divorce isn’t such a tragedy. A tragedy’s staying in an unhappy marriage, teaching your children the wrong things about love. Nobody ever died of divorce.” –Jennifer Weiner, Fly Away Home