The Michigan Divorce Process: What You Need to Know
June 5th, 2020
It is easy to get caught up and intimidated by the prospect of going through a divorce. Beyond even the emotional considerations, fears of the divorce process itself can deter you or make you delay choosing that path. After all, family law does not have the best reputation and media portrayals of public courtroom battles with ruthless attorneys over children and property do not help. However, modern family law has evolved, and the Michigan divorce process doesn’t have to be as ugly as seen on TV.
Many family law attorneys understand the need for a less destructive approach. Our firm was founded on those very principles in an effort to bring forward-thinking family law to our communities. We want everyone to know that litigation is not the only path to divorce. There are several alternative dispute resolution (ADR) options within the Michigan divorce process that you can use to resolve your marriage with less conflict, and more dignity.
The Various Paths to Divorce
Couples considering divorce in Michigan have options ranging from least contentious to most expensive:
- Party-negotiated settlement
- Facilitative mediation
- Collaborative law
- Attorney-negotiated settlement
The first three options put the decisions around dissolving your marriage in the hands of you and your spouse with the help of trained mediators, divorce coaches, financial advisors and attorneys. The last two options involve intervention by attorneys, Friend of the Court staff, and judges, to recommend and ultimately make decisions for you when you are unable to work matters out yourselves. Often, you and your attorney can combine two or more options to create a hybrid approach to meet your unique needs.
Party negotiated settlement, also known as a “kitchen-table” settlement, is one of the lowest-conflict paths and involves the parties reaching an agreement together, sometimes entirely on their own. It can also be the least expensive. In a party-negotiated resolution, you and your spouse work together to decide the terms for dissolving your marriage over the course of one or more conversations. Together you decide how to:
- Divide personal property
- Split up bank accounts, retirement accounts, and other financial assets
- Deal with real estate
- Cover family debts, mortgages, and other financial obligations
- Assign custody and parenting time of the children
- Make sure the children’s needs are met through child support
- Providing for the non or low wage earning spouse through spousal support if needed
Usually, the conversations are just between the parties, but sometimes trusted family members or friends are brought in to help. Although, parties must take care to shield children from these negotiations.
Why Choose a Party-Negotiated Settlement
This kind of “do-it-yourself” divorce helps families keep costs down. Parties may try to complete their divorce entirely on their own using forms they found online or received from the court. If you can resolve your dispute before the complaint is filed, you can take advantage of Michigan’s uncontested divorce process to speed things up and get your divorce finalized more quickly. If you file your complaint first, though, it will be up to you to follow the court’s timelines and get everything resolved in time to avoid having your case dismissed or set for trial.
When Opting for a Party-Negotiated Settlement is a Bad Idea
As you can imagine, this approach is not for everyone. The process is very dependent upon the relationship between you and your soon to be ex-spouse. It is also not recommended in cases where one spouse has all or most of the power or control of assets and information or in cases of domestic violence. In those cases, the spouse without the power and control may feel forced into an agreement that will leave them unable to care for themselves, or their children, after the divorce is final. The dominant partner may also hide family assets that the less powerful partner is entitled to, resulting in an unfair settlement.
How a Lawyer Can Help Party-Negotiated Settlement
While court staff can help self-represented parties (aka Pro Pers) to a certain extent, they cannot offer legal advice. If you and your spouse choose an uncontested divorce option you will still be expected to follow the court rules and procedures. Court staff also can’t help you identify problems in your agreement, like those described above. They will not warn you if your agreement is unfair or won’t work from a practical perspective.
Even if you and your spouse decide to work out the details yourself, it is a good idea to hire an attorney to memorialize your agreement and file the divorce paperwork with the court. You can also consult with your attorney while you negotiate your “kitchen-table” settlement, to make sure you aren’t overlooking issues or creating problems with the way you fill out the paperwork.
Talking to a lawyer during the negotiation process can avoid costly and time-consuming post-judgment conflicts that could take you back to court after the divorce is final. In the interest of keeping costs down but still obtaining professional help, you can consider entering into a limited scope agreement with an attorney who will review or draft your final judgment and related paperwork. Keep in mind, however, an attorney cannot represent both parties.
Michigan divorce mediation is the most well-known form of alternative dispute resolution and is quickly becoming the most common divorce process. Mediation is meant to be a less formal setting than a courtroom. It encourages you and your spouse to communicate with the help of a neutral mediator to reach mutually agreeable solutions that are right for your family.
Many local judges order parties to try mediation before taking their divorce case to trial. Michigan divorce mediation often costs less than traditional litigation. You and your spouse can agree to try facilitative mediation early in the process, even before filing your complaint, to reduce the time and expense of filing for divorce.
How Michigan Divorce Mediation Works
During mediation, a trained professional mediator, preferably one with family law experience, helps the parties work through each outstanding issue. The mediator does not have any authority to make decisions or dictate the outcome of the negotiations. Instead, a mediator’s role is to empower the parties to make decisions themselves about how to structure the dissolution of their marriage. Mediators do this by offering general family law knowledge, insights into local judges’ perspectives, and creative solutions to roadblocks the parties are facing.
The mediator is a neutral, third-party and cannot offer legal advice or counsel to either party. However, you and your spouse are free to bring attorneys with you to the mediation table if you choose. If your case includes complicated legal questions, your mediator may encourage you and your spouse to each hire your own lawyer as part of the mediation process.
Mediation usually starts with you and your spouse (or your attorneys) each providing a written summary about the basic background facts of the case and issues to be resolved. This will usually include your suggested resolution to each issue.
A few days after the summaries are exchanged, you and your spouse, along with your attorneys if you choose, will meet with the mediator. Mediations are usually done in person, but can also be held virtually using platforms such as Zoom when circumstances require it.
The mediator will meet with each person individually to screen for domestic violence concerns. If you are a domestic violence survivor you will be asked to sign a waiver saying you are voluntarily participating in mediation and have not been forced to attend. The voluntary nature of mediation is very important. Your mediator will need to ensure that you feel safe and not coerced into making any decisions. You cannot be forced to mediate if you are a domestic violence survivor, even if a judge orders you to attend mediation.
Depending on the dynamic between you and your spouse, and your preferences, mediation can be done with everyone in the same room or through “shuttle mediation” where each side is in separate rooms and the mediator goes back and forth. This format allows you to talk privately with your lawyer, or with the mediator, when you want to.
Some cases can be settled in the course of one session while others require two or more sessions. Depending on the complexity of the case, you may need to enlist the help of other professionals such as:
- financial advisors to suggest divisions of retirement assets
- business experts to set values on family-owned businesses
- child specialists who can propose custody and parenting time arrangements
In these cases, you may need to schedule follow-up mediation sessions to allow those professionals to do their work and provide feedback.
Do You Need to Be Careful About What is Said During Mediation?
Mediation is a confidential process. To encourage open communication and facilitate settlement, anything said or prepared as part of the mediation process is shielded from use in court later. Your mediation agreement will also include language that neither side will bring the mediator to testify in court or try to get access to his or her notes. Settlement documents, recordings of the negotiation, or anything else prepared for your mediation is inadmissible in court.
However, you can’t shield evidence just by bringing it with you to mediation. Bank statements, bills, reports, and other types of admissible evidence are sometimes disclosed or used during the settlement discussions. If settlement fails, you may find your spouse will try to get access to those records, or admit them at trial.
What Happens When You Settle Your Divorce at Mediation
If you and your spouse resolve all the outstanding issues through facilitative mediation, your mediator or attorneys will help you prepare a written settlement agreement based on those decisions. This settlement agreement will be incorporated into a Judgment of Divorce to be signed by the judge assigned to your case. Sometimes for privacy reasons, all the terms may not be included in the court document itself but instead will be incorporated and merged by reference only. If your spouse refuses to sign the judgment, or if you need help enforcing the terms of the settlement later on, you can bring the settlement agreement to court to enforce the agreement.
The collaborative divorce approach is probably one of the most overlooked and undervalued options for divorcing couples. It is another method of alternative dispute resolution which encourages the parties to resolve issues between themselves without involving the courts. What makes this approach different is that it enlists the help of specially trained Collaborative lawyers, mental health, and financial professionals. The goal is that all these professionals working together can help to educate, support, and guide parties in reaching a balanced, respectful and lasting agreement.
How Collaborative Divorce Works
If you and your spouse choose to use the collaborative divorce process, you will each need to hire your own collaboratively trained attorney, as well as at least one neutral mental health professional to serve as a divorce coach, and a neutral financial expert to serve as neutral advisors. You or your spouse may also benefit from additional counseling or mental health treatment, but this would be provided through a separate mental health professional. A child specialist or other professionals can also be retained as necessary to address the particular issues in your case.
Once the team is assembled, everyone signs a participation agreement which spells out the process, scope, and responsibilities of everyone involved including good faith efforts and full disclosure of all relevant and material information. That agreement makes it clear that if either you or your spouse walks away from the collaborative process and files a complaint or motion with the court, the attorneys and professionals are released and you will need to find new representation for the contested court proceedings.
Next, the divorce coach will schedule meetings between the parties and their neutral professionals, either together or separately. Each expert will help you and your spouse work through what your lives will look like post-judgment. This can include:
- Communication between you and your ex-spouse
- Co-parenting strategies
The professionals and attorneys stay in touch and keep one another informed, providing full disclosure according to the nature of the process. Once you and your spouse are ready, the divorce coach will set up meetings with your attorneys and the other relevant professionals to dive into making agreements on each subject. The number of meetings needed varies depending on the complexity of the case and the needs of the parties.
Unlike many of the other options, in a collaborative case, a complaint for divorce is not filed until the end of the process, after the parties have reached a settlement. As a result, the team can help the parties move at a pace appropriate to their case without arbitrary court timelines adding pressure.
Why Choose Collaborative Law
Divorce is almost never just confined to the legal arena. Family law intrudes into some of the most intimate aspects of a person’s life. Instead, divorce impacts three primary areas of life:
Attorneys may sometimes be called “counselors” but your divorce lawyer usually isn’t trained to help you work through the emotional effects of a relationship ending. Nor are attorneys necessarily fluent in finance or tax issues. While your divorce attorney may be able to provide general suggestions about emotional and financial issues, it’s almost always better to get that advice from the experts.
Financial advisors, child specialists, and other professionals are often engaged in other divorce routes anyway, especially in traditional litigation. However, in the collaborative process, you and your spouse agree to work together with the same professionals. This can save money by allowing you to split the cost of the experts’ fees, rather than each of you hiring your own.
The collaborative law process also focuses on proactive solutions, rather than simply responding to conflict. Most financial professionals work with the parties to budget for the process. Your mental health professional will help you and your spouse learn conflict management strategies that will help your resolve future co-parenting disputes. These strategies offer long-term savings by avoiding sending both parties back to court after the divorce is final.
In high-conflict cases, when you and your spouse aren’t able to come to an agreement on your own, you may file a complaint for divorce to get the help of the courts. However, the start of formal court processes doesn’t mean that alternative dispute resolution processes need to stop. In those cases, your attorney and your spouse’s attorney can negotiate settlements on your behalf even as the traditional Michigan divorce process continues.
The Traditional Michigan Divorce Process
Once you or your spouse files a complaint for divorce, it triggers a series of hearings, status and settlement conferences, and interviews with Friend of the Court (FOC) personnel. At the same time, depending on the issues in the case, you may also need to attend hearings on temporary motions to resolve issues related to:
- Custody and parenting time
- Child support
- Spousal support
- Attorney fees
- Payment of household expenses
- Use and occupancy of the marital home
- Enforcement of discovery court rules
The back and forth between attorneys, filing of motions, evidentiary hearings, FOC services, and evaluations/reports by experts all add up to make this a very costly process in high-tension cases.
These types of cases also usually involve a high degree of discovery beyond the initial Verified Personal Financial Disclosure form. While your attorneys negotiate, you may need to work with members of their staff to respond to interrogatories, requests to produce documents, subpoenas, and depositions.
Attorney-negotiated settlements take place in a variety of settings from telephone conferences and emails to office meetings and courthouse-step discussions. In high conflict cases, settlements are often not reached until the 11th hour right before commencement of a hearing or a trial. While those conversations continue, you will still be incurring expenses for hearings and trial preparations, even if they ultimately don’t happen, adding to the costs of this process.
However, in other, low-conflict cases, attorney-negotiated settlements can be a cost effective alternative to going through the formal court process. When you and your spouse agree on the broad issues, but not the details, you can get an attorney’s help to iron out the agreements and refining the details into an agreement that will carry you into the future after the divorce is final.
When all attempts at negotiations fail, you and your attorney will need to present your case to the judge at trial. Even in high-conflict cases, in Michigan, only a very small percentage of divorces end up going to trial in front of a judge. (There is no right to a jury trial in the family law cases.) A trial is the most extreme, costly, and emotionally draining option of all the Michigan divorce process choices. You will almost always have already gone through other options, including court-ordered mediation and attorney-negotiated attempts at settlement. Often, by the time you get to trial, the judge may be very familiar with you and your case and you will have spent countless hours and thousands of dollars battling with your ex-spouse.
Leading up to the start of trial, attorneys for the parties will engage in extensive trial preparations including:
- Completing outstanding discovery
- Filing pretrial motions and appearing for hearings
- Drafting trial briefs that summarize the issues
- Subpoenaing and preparing witnesses to testify
- Organizing documents and exhibits to prove your case
The trial itself could last several days. Once each side has presented their case, you will likely still have to wait for the judge to make their final decisions if they are not prepared to make a ruling from the bench. Trials are also public proceedings. This means that barring a restraining order, the trial transcript, admitted exhibits, and the verdict are all part of the public record and in many counties are accessible online. Once the judge makes their ruling, it is essentially final. However, an unsatisfied party could file an appeal. That would trigger another round of time consuming and expensive litigation.
To be clear, while having trials in family law cases is not favorable, in some cases it is the only viable option. If you or your spouse cannot negotiate in good faith, one of you wishes the other harm, there is a struggle for control, or the presence of domestic violence, the formal divorce trial process provides a safety net, allowing the judge to make the final decision. However, for anyone considering a divorce, trial should always be the last resort.
Choosing the Right Divorce Process
Each of these divorce processes have their advantages and their challenges. To determine what option is best for your family, you and your attorneys must consider the specific circumstances and needs that shape your case. After all, family matters are some of the most intimate and often no judge or attorney is better equipped to make those decisions than you are. However, selecting between the different processes will depend on how well you and your spouse can communicate, the complexity of your case, and whether there are complicating factors like domestic violence or unequal access to information.
Before you decide to file for divorce in Washtenaw County or other circuit courts throughout Southeast Michigan, you should talk to an experienced Ann Arbor divorce attorney about your situation and choose the Michigan divorce process that fits best.
At NSSSB, our divorce attorneys are trained to work in all these forms of alternative dispute resolution. Our Southeast Michigan family law attorneys are happy to review your case and help you consider alternative dispute resolution options that may be right for your family. We can also through the sometimes difficult traditional divorce process. Click here to schedule a consultation with one of our experienced attorneys.
Article Updated: 09/17/2020