Friday, January 21, 2011

I Want a Divorce! Now What?

A lot of clients come in to the Peter J. Johnson Law Office knowing that they need a divorce, but not knowing what the process is going to be to get one.  This is intended as a very basic overview of the procedure for getting a divorce.  Of course, every relationship is different, so there may be something about your case that will cause it to vary from this procedure, but in general a divorce follows a certain order of steps.

Step 1: Gather Your Information

Even before you come in for an initial consultation with an attorney, it is often a good idea to get your important documents in order.  Divorces are emotional things, and when either you or your soon-to-be-ex moves out it can be easy for these important papers to get lost.

For minor children (under 18 years of age)

            Birth Certificates

            Social Security Cards

            Medical Insurance cards

For your home (Real Property)

            Deed

            Mortgages & Notes

            The most current invoice showing the balance you owe on the home

            Any appraisals that have been done on the property

            Invoices for any unpaid or overdue utilities

            A list of who paid what in the maintenance and upkeep of the home

For your motor vehicles (cars, trucks, motor homes, boats, ATVs, etc.)

            Title

            Registration

            Proof of Insurance

            Loan contract

            The most current invoice showing the balance you owe on the vehicle

            A list of who paid what in the maintenance of your vehicle

For your “stuff” (Personal Property)

            A list of any property you owned before the marriage

            A list of any property your soon-to-be-ex owned before the marriage

            A list of any property you specifically want (or don’t want) after the divorce

            Any appraisals that have been done on the property

For your accounts (bank, credit, debit, etc.)

            The most current statement showing the balance in the account (or how much is owed)

            Whose name the account is in

            A list of who paid what in the maintenance of these accounts

For your investments (401(k), Pensions, IRAs, Insurance, stocks, bonds, etc.)

            The most current statement showing the balance in the investment

            The name of the Plan Administrator for the investment

            Whose name the investment is in

            When the investment was opened

            (For 401(k)s and Pensions) What employer the investment is through

Step 2: Initial Consultation

Meet with the attorney.  At the Peter J. Johnson Law Office the initial consultation is free.  Be prepared to answer questions and/or fill out a questionnaire with much of the important information contained above.  You may wish to bring copies of the documents to speed up the process.

Be truthful.  Tell your attorney the truth, even if it’s ugly.  Your attorney is your advocate.  It is his or her job to fight for your position and to put your story in the best light possible.  It is much harder to do that if you are not up front with potential problems.  Think of it this way: what is the worst thing your soon-to-be-ex might say about you?  That is what your attorney probably needs to hear about.

Be thorough.  Ask all your questions, even if they seem trivial.  Sometimes what seems like a small thing can provide a clue that will become important later on.

Be prepared.  At the end of the initial consultation, your attorney may want you to sign a Fee Agreement and put up a retainer fee to get the case started.  Know what you can afford to pay.  Work often cannot start on your case until you put some money down.

Step 3: Initial Pleadings

After you meet with your attorney, he or she will begin drafting the initial pleadings.  These may include:

• Summons and Complaint (in every case) – Gives your soon-to-be-ex that you have filed for a divorce
• Complaint for Divorce (in every divorce case) – States the basic claims about what has happened and what you want out of the divorce.  Because Michigan is a no fault state, the Complaint for Divorce does not go into details.  That will come later.
• Temporary Motions – Motions that help to set how you and your soon-to-be-ex will interact during the divorce proceedings, such as:
  • Temporary Custody and Parenting Time – Who will have the children and at what times
  • Temporary Child Support – Who will pay for the children’s expenses
  • Temporary Restraining Order as to Marital Property – Prohibits either you or your soon-to-be-ex from getting rid of marital property
  • Temporary Spousal Support – Who will provide for your (or your soon-to-be-ex’s) expenses
  • Temporary Attorney Fees – Who will pay for your (or your soon-to-be-ex’s) attorney
  • Exclusive Use of the Home or Vehicle – Who will get to keep possession of the marital home or use particular vehicles.

There are many different kinds of temporary motions.  If there is something you feel should be addressed right away, talk to your attorney about it.  There may be a temporary motion that can be filed to address your concern.

• Verified Statement and IV-D Application – A form filed with the Friend of the Court (an administrative department that assists with family law matters) and contains confidential information not included in the public file (like social security numbers)

Once these documents have been prepared, your attorney should call you to come in and sign the documents.  Then they can be filed with the court.  When the documents are filed, a case number and presiding judge are assigned.

Step 4: Service of Process

After your attorney files your initial pleadings, they must be personally delivered to your soon-to-be-ex.  This is done by designated “process servers,” many of whom are retired police officers.  Be sure to give your attorney a physical description of your soon-to-be-ex, so that the process server will be able to recognize him or her when serving the papers.  Let your attorney know when and where is the best place to find your soon-to-be-ex.  Should he or she be served at home or at work?  Is it better during the day or evening?  What about weekends? 

If you are concerned about how your soon-to-be-ex may react to being served, talk to your attorney to arrange a particular time when he or she will be served.  That way, you can make arrangements to be elsewhere when it happens.

Step 5: Answers

Once your soon-to-be-ex has been served, he or she has 21 days to file his or her Answer to Complaint for Divorce, as well as answers to any temporary motions that have been filed.  He or she may elect to contact an attorney, in which case that attorney will file an appearance and draft the answers.  Otherwise, your soon-to-be-ex may choose to represent him or herself.  In either case, the law treats your soon-to-be-ex the same and assumes that he or she will abide by all the court’s rules and procedures.

Step 6: Mediation Orientation

After you have filed your initial pleadings (in Berrien County), the Friend of the Court will contact you gather some information about any minor children you may have, your income, your home, and so on, as it relates to those children.  The Friend of the Court will use that information to create a recommendation as to issues related to the children and to spousal support, which it will provide to your presiding judge.

The Friend of the Court (in Berrien County) will also set up a Mediation Orientation date for you and your soon-to-be-ex.  This is a one-on-one mediation session between you and your soon-to-be-ex.  No attorneys are involved.  It serves as a first chance to resolve who gets what after the divorce.  There will be many more opportunities to come to a resolution, so do not feel that you need to give in to anything on that day.

Step 7: Preliminary Hearings

After the Mediation Orientation date (in Berrien County), the Friend of the Court will set a hearing date for any temporary motions that were filed relating to children or spousal support.  The initial hearing is short and is designed to see if a settlement resolution can be reached.  If not, then the Friend of the Court will set a contested hearing.  Both of these hearings will take place in front of a Domestic Relations Referee.

The Contested Hearing may take a half or even a whole day.  Each side will have an opportunity to present evidence and to cross-examine the other side’s witnesses.  It is kind of like a mini-trial.  At the end of the hearing the Domestic Relations Referee will issue a ruling.  If either side disputes the ruling made by the Referee, they may request that the presiding judge hold a “De Novo Hearing” and review the decision made by the Referee.

Step 8: Waiting Periods

The Michigan Legislature has stated that before a couple may get a divorce, they must wait 60 days if there are no minor children, or 180 days if there are minor children.  This waiting period starts the day the Complaint for Divorce is filed.  The purpose of this waiting period is to make sure that the parties will not reconcile before a Judgment of Divorce is entered.

This is not wasted time.  It provides an opportunity for both sides to gather important information (discovery), file any necessary pre-trial motions, obtain experts to appraise the home or marital property, or to address any other relevant issues (such as psychological examinations or DNA testing), and to prepare for trial.

Step 9: Mediation

Most cases (in Berrien County) are referred to a Mediator prior to trial.  A Mediator serves as an unofficial go-between with the parties and attempts to come to a resolution that both sides can agree to.  Attorneys for both sides attend the mediation.  If the parties are able to resolve all the issues, then no trial is necessary, but if not, then at least the Mediator may be able to narrow down which issues are disputed and provide a focus for the scope of the trial.

Step 10: Trial

This is your chance to present your case to the presiding judge.  Your attorney will likely put on witnesses and present evidence, and may even call you to the stand to testify.  The other attorney will have a chance to cross-examine all of the witnesses, including you, and to review all the evidence, as well as put on any of his own. 

Testifying can be a big deal, and can be intimidating to some people.  Talk to your attorney before the trial.  Try to find out what kinds of questions he or she plans to ask you, and think about your answers ahead of time.  Maybe jot down a few notes to review right before you take the stand.  Ask the attorney if you can see the courtroom ahead of time.  Most importantly, try to relax.  Remember that the judge is a person just like you, and he or she will forgive you if you slip up or stutter, or need to take a break.

At the end of the trial, sometimes on a separate day or in a written “Opinion” the presiding judge will make his or her ruling.  This is the final order of the case.  What he or she rules will be binding on you and your soon-to-be-ex unless and until it is overturned in some later order or appeal.

Step 11: Judgment of Divorce

After you and your soon-to-be-ex reach an agreement on all the disputed issues, or if you are unable to, after the judge has made his or her ruling, then the attorneys will put all of the terms together in one document called the Judgment of Divorce.  Often there will be attachments, like a Uniform Child Support Order or a Uniform Support Order (for spousal support).  You may be asked to come in and sign these documents before they are filed.  Read these documents carefully and make sure you understand them.  The Judgment of Divorce is your reference to what you and your soon-to-be-ex are supposed to do after it is entered to resolve your divorce.

Step 12: Pro Confesso Hearing

If you did not have a trial in your case (because you and your soon-to-be-ex came to a settlement), you will have to go before the judge and provide proof that the statements in your Complaint for Divorce are true.  This is a short and relatively painless hearing.  At the end of this hearing (or after the Judgment of Divorce is prepared following a trial), the judge will sign the Judgment of Divorce and any attachments and you will be officially divorced.

Divorce cases can be long and complicated processes.  Make sure you keep in touch with your attorney and understand what is going on.  It may seem like a long time, but in the end, hopefully, you will be much happier for it.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have questions related to a Family Law matter such as a divorce.