Michigan Divorce Law
Divorce cases are often difficult and emotionally taxing for all parties involved. It is important to have an attorney who is sensitive to your needs, and who can formulate a plan to protect your rights and assets. Usually both parties suffer financially as a result of divorce. Watch out for an attorney who brings frequent motions, and who manufactures conflicts, for the sole purpose of justifying a larger bill. Please pick your divorce lawyer carefully.
Michigan has enacted a no fault divorce law, pursuant to which residents of Michigan can obtain a divorce without establishing that the other party did something wrong. A trial court can grant a divorce if it finds that "There has been a breakdown in 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." Please note that issues of "fault" may remain relevant to the division of the marital estate, and that aspects of "fault" may come out in the event of child custody litigation.
To file for divorce in Michigan the plaintiff must have been a resident of Michigan for at least 180 days, and must have resided in the county where the divorce complaint was filed for at least ten days prior to filing. The plaintiff can also file a divorce based upon the defendant's meeting those residency requirements. There are narrow circumstances under which the 10 day county residence period can be waived.
If the other spouse resides in another state, the Michigan court will be able to grant a valid divorce, but may be limited in its ability to divide property or determine custody and child support. However, it is possible for a spouse who lives in another state to consent to having all divorce-related issues decided by the Michigan court.
If you are concerned that your spouse may be filing for divorce in another state or jurisdiction, you should consult with an attorney about whether it would be appropriate for you to try to file a divorce in your own state. In many circumstances, the divorce will be decided in the state where a complaint for divorce is first filed, which can result in significant difficulty and expense to a spouse who resides in another state.
Under normal circumstances, a trial court in Michigan must observe a sixty day "cooling off" period before granting a divorce. While it is possible for a trial court to find circumstances which justify waiving this period, in most cases the full waiting period will be observed. The waiting period is longer in cases involving child custody.
A trial court may consider "fault" issues when dividing the marital assets, or when assessing spousal support (alimony). Please note that under most "fault" circumstances, the trial court will not dramatically change the division of assets. With most marital estates, you will need to consider whether a five or ten percent difference in the property division justifies the expense and conflict associated with attempting to prove fault. There is often a better financial return in making sure that all assets are located, properly valued, and included in the marital estate, as opposed to trying to prove fault.
Please note that while the five or ten percent difference is most typical, in extreme cases courts have been known to award larger amounts, and on at least one occasion even the entire marital estate, to the wronged spouse. Your attorney can help you make the assessment of what is likely to happen in your case, and whether you would benefit from trying to make fault an issue.
The first consideration for a court in evaluating the division of the marital estate is the determination of which portions of the estate constitute the parties' separate property, and which is part of the marital estate. By way of example, inheritances are usually considered to be the separate property of the spouse who received the inheritance. Similarly, a business or asset owned prior to the marriage may be considered to be a separate asset, depending upon how it was treated during the marriage. At times, an item of property might be deemed to be "separate property", while the appreciation or interest earned by the asset is considered to be a marital asset. At other times, a parties separate property at the onset of the marriage may be deemed to have merged into the marital estate. Also, a trial court may invade one spouse's separate property when necessary to provide for the adequate post-divorce support of the other spouse.
Factors to be considered by the trial court when dividing the marital estate include:
An award of spousal support is ordinarily made within the context of the division of the parties' property and assets. Under appropriate circumstances, a trial court may provide for temporary spousal support while a divorce case is pending, or may order support to be paid retroactive to the date the complaint for divorce was filed. A spousal support award may take into consideration the amount of marital estate, and whether one of the spouses will have to liquidate assets awarded in the divorce in order to maintain a reasonable lifestyle. Where one spouse has sufficient income to preserve his or her share of the property settlement and the other does not, spousal support may be appropriate.
Spousal support is usually awarded either in the form of periodic payments or "in gross" (in a lump sum). Periodic payments are usually described as "rehabilitative" (short-term payments to help the recipient spouse get back on his or her feet), or permanent (ordinarily lasting until death, remarriage, or further order of the court). Awards of periodic alimony are normally subject to subsequent modification by the court, whereas awards of alimony in gross ordinarily cannot be modified after judgment.
Factors to be considered by a trial court in awarding spousal support include:
There are at least two sets of unofficial spousal support guidelines available in Michigan. Courts will usually entertain calculations made under the guidelines, but the guidelines are not binding on the court.
If there is a possibility that one or both spouses will file for bankruptcy after the divorce, an attorney must take particular care to structure the property division and support award so as to protect the client spouse from the effects of the other spouse's bankruptcy.
For information on child custody, please see the related article:
The information contained in this web site is provided as a public service. While the information on this site is about legal issues, it is not legal advice or legal representation and should not be relied upon as legal advice. Because of the rapidly changing nature of the law, we make no warranty or guarantee of the accuracy or reliability of information contained herein or at other sites to which we link. As legal advice must be tailored to the specific facts and circumstances of your case, information cannot substitute for the advice of competent legal counsel.
Nothing presented on this site establishes or should be construed as establishing an attorney-client relationship between you and Mr. Larson. No attorney-client relationship exists between you and Mr. Larson until Mr. Larson has been formally retained, or has acknowledged an attorney-client relationship in writing. You should not send any confidential information to Mr. Larson until you have received written acceptance from the firm of any legal services you may request. The content of any correspondence that you send via the Internet will not be considered confidential unless you have received such written confirmation.
Mr. Larson does not seek clients from outside of the state of Michigan. If you require legal advice, please contact an attorney licensed to practice in your state. We will be happy to assist you, if possible.
Copyright © 1999-2010 Aaron Larson. All rights reserved.