No one ever plans for divorce but sometimes it is inevitable, and sometimes it is for the best in the long-term.
The first step in the divorce is the initial filing, call the Verified Complaint. Once filed with the Court, the Complain must be given to the other spouse, who then has 21 days to respond with legal pleadings called an Answer.
A person will often worry that once they file for divorce the other person will simply stop contributing to the household expenses. At the time of filing, we can ask the judge to sign an Order requiring both parties to contribute to the marital expenses throughout the divorce process.
Issues for Resolution
The most important issues for resolution will relate to any minor children involved.
The parties will have to determine custody. There are two kinds of custody, legal custody and physical custody. Legal custody means the ability to make large decisions for the Child, such as decisions related to school, medical choices, and religion. Physical custody relates to which household the Child resides.
After the parties decide custody, they must create a parenting time schedule. A parenting time schedule defines which household the child spends the night. A parenting time schedule can be any schedule the parents can create. For practical purposes, the schedule is often based on the school and extracurricular schedule of the Child and the work schedule of the parents. Often, the Child will alternate the households for holidays.
The parties must then determine if child support is necessary. Child support is an amount of money paid by one parent to the other parent. Child support is determined by a formula created by the state government. The formula takes into account the number of overnights the parents have, the income of the parents, and which parent pays health insurance.
After resolving issues related to the children, the parties will have to create a property settlement. The first step will be to determine which property owned by the parties is marital property. Marital property is the property acquired during the marriage. Marital property will be split equally. Parties will keep any separate property, which would be property before the marriage or through inheritance.
Often, the largest asset owned by a married couple will be a house. The parties will need to determine the worth of the house. Generally, the parties will do one of two things with the house. First, one party can be awarded the marital home and pay to the other spouse half of the home equity. Or the parties can sell the home and split the proceeds equally.
The second largest asset owned by parties will be retirement accounts or bank accounts. All of the accounts will need to be researched to determine what is marital property versus what is separate property.
Personal property must generally be divided by the parties, as the parties will know their own property better than the attorneys, and will save a lot of money by negotiating the personal property on their own.
Spousal support may be appropriate in some divorces. Spousal support is based on the needs of one party in the divorce. Often this need arises because the parties have unequal incomes. This is seen where one party chose to stay home to raise children rather than join the workforce. Spousal support, unlike child support, is ultimately negotiable.
During the early phases of the divorce process, the parties and their attorneys should explore whether the case can resolve through negotiations. Cases resolved in this way will help save the expense and time of mediation.
Many divorce cases are now resolved through mediation. Mediation is a process through which the parties negotiate a settlement. The parties’ attorneys will agree on a neutral and independent attorney to act as a mediator, often an attorney with experience practicing in the same court as the divorce. The mediator facilitates a conversation between the parties to resolve the case.
Generally, the parties will go to the mediator’s office, and sit in separate rooms with their attorneys. The mediator will go back and forth between the parties with proposals and settlement offers.
The mediator has the power to draft an agreement that if signed by the parties will act as a binding contract.
Mediation is often a very effective method to resolve a divorce. The parties are literally forced to the negotiating table. Parties are often happier with mediation than trial because they have more control over the outcome.
Trial in a divorce case is statistically rare. Generally, judges will force the clients to attempt mediation at least twice before entertaining the idea of trial. Then, the judge will personally try to twist the attorneys’ arms to get them to settle, reminding the parties of the expense involved in trial.
Unfortunately, a trial sometimes is necessary, either because a party would not negotiate in good faith or the parties are simply too much in disagreement on the issues.
A trial in a divorce case is not a zero-sum game. A divorce trial is not like football, in which one team wins and one team loses. The Judge is often forced to “split the baby,” meaning each party wins and each party loses. This is the main reason most cases will settle short of trial.
Nevertheless, we are prepared to go to trial in any case.
ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.
We regularly appear in Washtenaw, Wayne, and Oakland County Circuit Courts in Divorce cases.