Divorce 2018-11-12T19:06:03+00:00

Divorce

Making the decision to end your relationship can be one of the hardest decisions in life, especially if you have young children at home.  I understand the emotional and financial side to divorce matters and all the ups and downs associated with the divorce process, both legal and non-legal.

There are many issues to consider from the outset such as paying the bills and custody/parenting time schedules while the divorce matter is pending.  As the process continues there are many more decisions to be made, including how to split time with your children, who will make the major life decisions for your children, whether one spouse is entitled to spousal support (alimony), what is “marital property” and how to separate the marital assets and debts fairly.

>> Click here to jump to the Divorce Frequently Asked Questions section.

If you have young children it is important to consider child custody and a parenting time plan that fits your needs, including considering your career/work, personal, and  your children’s schedules, your children’s needs and extracurricular activities, in the child’s best interests to promote consistency  and stability as they also adjust to the new normal.  Child support is another consideration of couple with young children to ensure that your children are adequately provided for financially both during the pendency of your divorce matter, and after.  In some cases, alimony, now called “spousal support”, may be appropriate to help get you back on your feet if you have forgone a career to stay at home and take care of the children and household or in order to help your spouse build his or her career over the years.

While all divorce cases must be filed in court, and a judge issues the final order dissolving the marriage, many aspects can be handled outside of court. You may consider reaching a settlement through informal discussions, or more formal sessions, such as mediation (alternative dispute resolution).  If mediation is an option for you, a mediator (a third party neutral) helps you, your attorney, your spouse, and his or her attorney, work together to reach an agreement on some or all issues.  In some situations, settlement is just not an option, and a trial is necessary.  If a trial is necessary on some or all of the issues in dispute, a judge (without a jury) will hear the evidence and arguments and make a decision.

Divorce is much more than separating from your partner, but reimagining and rebuilding your future.  Every divorce case is unique because every family is unique.  Divorce can be a complex and long process, but it does not have to be.  A divorce attorney can assist you by providing necessary legal advice, counsel, and direction while you navigate this monumental life change.  As a divorce attorney at Schmeltzer Law, I do not take a standard approach to cases, but instead work with you to determine your specific legal goals and needs to help you find solutions that are right for you, your children, and your future.

Divorce Alternatives

Annulment

When two people marry, the marriage is presumed valid. However, there may be some reasons that the marriage is not valid, and it may be important for a Court to annul the marriage, or formally declare it was or is invalid.

Read More

Legal Separation

Legal Separation is a formal process, much like a divorce, but the difference is that it does not serve the purpose of legally dissolving the marriage. Thus, you remain married to your spouse, but have a court order that sets forth the terms of living separately, which may include spousal support, child custody and parenting time, child support, and property division.

Read More

Prenuptial and Post Nuptial Agreements

Prenuptial Agreements, sometimes called Antenuptial Agreements, are a special type of contract between two people who intend to marry.  Under the United States Constitution, competent adults have the freedom to enter into contracts and be bound by the terms of the contract.

Read More

Collaborative Divorce

Collaborative Divorce, like Mediation or Arbitration, falls under the umbrella term “Alternative Dispute Resolution” or “ADR”. It serves as an alternative to going to trial and having a judge make a decision for you. Collaborative Divorce is unique to resolving disputes arising in domestic or family law cases, whereas mediation or arbitration is a type of alternative dispute resolutions that apply to other civil cases.

Read More

Mediation

Mediation can be utilized during Divorce proceedings instead of going to trial . Mediation is a formal negotiation and settlement process. In Michigan, almost all cases are referred to mediation (meaning the Judge requires you go to mediation and at least try to reach a settlement) before the Court will allow a contested trial to occur.

Read More

Divorce FAQ (Frequently Asked Questions)

It often does matter who files first. The first person to file has the first opportunity to make an impression on the court and have the first word. The person who files first also has the opportunity to ask the Court for Ex Parte Orders. Ex Parte means “without a hearing” and are used when there are facts or circumstances that one could reasonably believe the delay in waiting for a hearing would cause irreparable harm, either financially, or to yourself or the children’s safety or wellbeing. Ex Parte Orders can be anything from temporary custody and parenting time, temporary child support, temporary spousal support, mutual financial restraining orders, or status quo orders (to maintain the financial status quo).

No. In Michigan ethical rules require that an attorney can only represent one spouse in a divorce matter, as to represent both would mean that there is a conflict of interest as it relates to the various duties an attorney owes to his or her client. One spouse can chose to represent themselves, and the other have an attorney, but this means that the spouse representing themselves may not look to the other spouse’s attorney for legal advice.

If your spouse has filed for divorce, he or she must serve you with notice of the divorce by giving you a copy of the Complaint for Divorce, and a Summons and Complaint. This must be accomplished upon you as a person, and can be done by sending it via registered mail, or having a person that is not a party deliver them to your spouse by hand, which requires that person either be a court officer (a process server) or swear by affidavit that service was made. If you receive these papers it is important to read them carefully, and seek out legal advice from an attorney timely, as there are specific deadlines for you to take action, or otherwise you could be defaulted and ultimately a default judgment of divorce may be entered against (and not always with terms you like).

It depends. Just because a house is not deeded to a spouse jointly, does not mean he or she does not have a right to the value of the house. Stated differently, a spouse not on the deed likely still has some valuable interest in a house the couple mutually resided in during the marriage. Some other factors a court may consider in determining how much value to award to each spouse are facts like the length of the marriage, how long before the marriage one spouse owned the house, and/or the financial and physical contributions made to the house which caused it to increase/decrease in value.

Michigan is a “no fault” divorce state. This simply means that one spouse, or both together, can get divorced without having to prove someone is at fault for the breakdown in the marriage to the court. However fault can still play a role in several decisions related to property division as well as child custody and parenting time decisions. With respect to property division, a court will consider facts related to how the affair affected the assets/debts of the marriage (did your spouse buy lavish gifts with marital assets, leaving less assets to divide at the time of divorce?). With respect to child custody and parenting time, one of the best interest factors a court will consider is the moral fitness of each party, and also a court could consider if the new significant other is an appropriate person to be around the children.

The court will consider 14 statutory best interest factors when deciding custody and parenting time. While the fact that one parent stayed at home with the children and did not work outside the home can be considered by the court, the amount of weight the court would place on this fact would be dependent on other facts related to all of the best interest factors as well as the age of the children and the likelihood of the parent to continue to be able to not work (or work less) to provide for the care of the children. No one fact can guarantee a custody award one way or the other, but rather the totality of the circumstances will be considered to determine a custody and parenting time arrangement in the children’s best interests.

At the beginning of a divorce case where minor children are involved most counties will schedule a mandatory meeting with the parties and the Friend of the Court Caseworker. What happens at these meetings varies from county to county, and each county can chose to permit or exclude attorneys from these meetings. Some counties use these meetings to introduce the roll of the Friend of the Court to the parties, other counties go on to discuss whether the parties have temporary agreements as to custody and parenting time, and yet other counties go on to issue written temporary recommendations for custody, parenting time, and child support which are passed on to the judge to issue as an Order.

If the Friend of the Court issued a recommendation after meeting with the caseworker, or after a hearing before the Friend of the Court Referee, and there are errors, or you disagree, you have a specific amount of time to file an objection with the Court outlining what you disagree with and why.

In some circumstances, yes. Whether the other side pays your attorney fees can occur under two scenarios: 1) the other side agrees voluntarily and 2) the Court orders the other side to do so. A court may order the other side to pay your attorney fees either during the proceedings (while the divorce is pending) or after the divorce is completed. There are two general circumstances when the court will entertain an Order compelling the other side to pay your attorney fees 1) if there is a big disparity in income or access to assets and 2) if the other side fails to follow court rules or proceedings during the case (for example, the other side does not respond to formal discovery requests in time, requiring your attorney to expend unnecessary time they would not have had to expend to file a motion to compel those response, the court may reimburse you for those specific additional expenses due to the wrong doing of the other side on that occasion).

The court must presume the case is contested if one person has filed a complaint for divorce and the other has filed an answer. If you wish to settle the matter out of court, you have several avenues to do, such as engaging in collaborative divorce before filing the divorce action in the court, proposing a settlement offer through attorneys, an informal settlement conference with the parties and attorneys, formal facilitative mediation with a mediator, and a settlement conference (usually conducted at the court, without the judge, shortly before the final trial). However, until the court receives a signed and filed agreement settling all matters, it must assume the case is going to trial in order to keep deadlines and timelines on track.

A pro con (or pro confessor) hearing is sometimes called a “final hearing” (but will usually note somewhere on the notice “pro confessor”). This is a hearing that is set to accept a consent judgment of divorce. The hearing only lasts for approximately 10 minutes, and if the parties have reached a full settlement, they present the court with their completely drafted and executed consent judgment of divorce. The court will take “proofs” which is the testimony of the Plaintiff (the initiating party) on the facts necessary for the court to find on the record are true to grant a divorce. A pro con hearing is not a time for calling witnesses or presenting your case to the court.

It is important to differentiate between a final hearing that is a “pro con” or “pro confessor” hearing and a final trial. If your final hearing is not a “pro con” hearing, but rather a trial, it is a hearing in which the court will hear testimony from witnesses, receive exhibits, and hear arguments about the remaining contested issues. Thereafter the court will make a decision and issue an Order.

Schmeltzer Law, your Divorce attorney in Traverse City and Northern Michigan!

Schmeltzer Law is based in Traverse City, Michigan, and practices throughout the state of Michigan.

Divorce

Making the decision to end your relationship can be one of the hardest decisions in life, especially if you have young children at home.  I understand the emotional and financial side to divorce matters and all the ups and downs associated with the divorce process, both legal and non-legal.

There are many issues to consider from the outset such as paying the bills and custody/parenting time schedules while the divorce matter is pending.  As the process continues there are many more decisions to be made, including how to split time with your children, who will make the major life decisions for your children, whether one spouse is entitled to spousal support (alimony), what is “marital property” and how to separate the marital assets and debts fairly.

Scroll to the bottom of the page to read the Frequently Asked Questions on the divorce process.

If you have young children it is important to consider child custody and a parenting time plan that fits your needs, including considering your career/work, personal, and  your children’s schedules, your children’s needs and extracurricular activities, in the child’s best interests to promote consistency  and stability as they also adjust to the new normal.  Child support is another consideration of couple with young children to ensure that your children are adequately provided for financially both during the pendency of your divorce matter, and after.  In some cases, alimony, now called “spousal support”, may be appropriate to help get you back on your feet if you have forgone a career to stay at home and take care of the children and household or in order to help your spouse build his or her career over the years.

While all divorce cases must be filed in court, and a judge issues the final order dissolving the marriage, many aspects can be handled outside of court. You may consider reaching a settlement through informal discussions, or more formal sessions, such as mediation (alternative dispute resolution).  If mediation is an option for you, a mediator (a third party neutral) helps you, your attorney, your spouse, and his or her attorney, work together to reach an agreement on some or all issues.  In some situations, settlement is just not an option, and a trial is necessary.  If a trial is necessary on some or all of the issues in dispute, a judge (without a jury) will hear the evidence and arguments and make a decision.

Divorce is much more than separating from your partner, but reimagining and rebuilding your future.  Every divorce case is unique because every family is unique.  Divorce can be a complex and long process, but it does not have to be.  A divorce attorney can assist you by providing necessary legal advice, counsel, and direction while you navigate this monumental life change.  As a divorce attorney at Schmeltzer Law, I do not take a standard approach to cases, but instead work with you to determine your specific legal goals and needs to help you find solutions that are right for you, your children, and your future.

Divorce Alternatives

Annulment

When two people marry, the marriage is presumed valid. However, there may be some reasons that the marriage is not valid, and it may be important for a Court to annul the marriage, or formally declare it was or is invalid.

Read More

Legal Separation

Legal Separation is a formal process, much like a divorce, but the difference is that it does not serve the purpose of legally dissolving the marriage. Thus, you remain married to your spouse, but have a court order that sets forth the terms of living separately, which may include spousal support, child custody and parenting time, child support, and property division.

Read More

Prenuptial and Post Nuptial Agreements

Prenuptial Agreements, sometimes called Antenuptial Agreements, are a special type of contract between two people who intend to marry.  Under the United States Constitution, competent adults have the freedom to enter into contracts and be bound by the terms of the contract.

Read More

Collaborative Divorce

Collaborative Divorce, like Mediation or Arbitration, falls under the umbrella term “Alternative Dispute Resolution” or “ADR”. It serves as an alternative to going to trial and having a judge make a decision for you. Collaborative Divorce is unique to resolving disputes arising in domestic or family law cases, whereas mediation or arbitration is a type of alternative dispute resolutions that apply to other civil cases.

Read More

Mediation

Mediation can be utilized during Divorce proceedings instead of going to trial . Mediation is a formal negotiation and settlement process. In Michigan, almost all cases are referred to mediation (meaning the Judge requires you go to mediation and at least try to reach a settlement) before the Court will allow a contested trial to occur.

Read More

Click on a question below to reveal the answer.

It often does matter who files first. The first person to file has the first opportunity to make an impression on the court and have the first word. The person who files first also has the opportunity to ask the Court for Ex Parte Orders. Ex Parte means “without a hearing” and are used when there are facts or circumstances that one could reasonably believe the delay in waiting for a hearing would cause irreparable harm, either financially, or to yourself or the children’s safety or wellbeing. Ex Parte Orders can be anything from temporary custody and parenting time, temporary child support, temporary spousal support, mutual financial restraining orders, or status quo orders (to maintain the financial status quo).

No. In Michigan ethical rules require that an attorney can only represent one spouse in a divorce matter, as to represent both would mean that there is a conflict of interest as it relates to the various duties an attorney owes to his or her client. One spouse can chose to represent themselves, and the other have an attorney, but this means that the spouse representing themselves may not look to the other spouse’s attorney for legal advice.

If your spouse has filed for divorce, he or she must serve you with notice of the divorce by giving you a copy of the Complaint for Divorce, and a Summons and Complaint. This must be accomplished upon you as a person, and can be done by sending it via registered mail, or having a person that is not a party deliver them to your spouse by hand, which requires that person either be a court officer (a process server) or swear by affidavit that service was made. If you receive these papers it is important to read them carefully, and seek out legal advice from an attorney timely, as there are specific deadlines for you to take action, or otherwise you could be defaulted and ultimately a default judgment of divorce may be entered against (and not always with terms you like).

It depends. Just because a house is not deeded to a spouse jointly, does not mean he or she does not have a right to the value of the house. Stated differently, a spouse not on the deed likely still has some valuable interest in a house the couple mutually resided in during the marriage. Some other factors a court may consider in determining how much value to award to each spouse are facts like the length of the marriage, how long before the marriage one spouse owned the house, and/or the financial and physical contributions made to the house which caused it to increase/decrease in value.

Michigan is a “no fault” divorce state. This simply means that one spouse, or both together, can get divorced without having to prove someone is at fault for the breakdown in the marriage to the court. However fault can still play a role in several decisions related to property division as well as child custody and parenting time decisions. With respect to property division, a court will consider facts related to how the affair affected the assets/debts of the marriage (did your spouse buy lavish gifts with marital assets, leaving less assets to divide at the time of divorce?). With respect to child custody and parenting time, one of the best interest factors a court will consider is the moral fitness of each party, and also a court could consider if the new significant other is an appropriate person to be around the children.

The court will consider 14 statutory best interest factors when deciding custody and parenting time. While the fact that one parent stayed at home with the children and did not work outside the home can be considered by the court, the amount of weight the court would place on this fact would be dependent on other facts related to all of the best interest factors as well as the age of the children and the likelihood of the parent to continue to be able to not work (or work less) to provide for the care of the children. No one fact can guarantee a custody award one way or the other, but rather the totality of the circumstances will be considered to determine a custody and parenting time arrangement in the children’s best interests.

At the beginning of a divorce case where minor children are involved most counties will schedule a mandatory meeting with the parties and the Friend of the Court Caseworker. What happens at these meetings varies from county to county, and each county can chose to permit or exclude attorneys from these meetings. Some counties use these meetings to introduce the roll of the Friend of the Court to the parties, other counties go on to discuss whether the parties have temporary agreements as to custody and parenting time, and yet other counties go on to issue written temporary recommendations for custody, parenting time, and child support which are passed on to the judge to issue as an Order.

If the Friend of the Court issued a recommendation after meeting with the caseworker, or after a hearing before the Friend of the Court Referee, and there are errors, or you disagree, you have a specific amount of time to file an objection with the Court outlining what you disagree with and why.

In some circumstances, yes. Whether the other side pays your attorney fees can occur under two scenarios: 1) the other side agrees voluntarily and 2) the Court orders the other side to do so. A court may order the other side to pay your attorney fees either during the proceedings (while the divorce is pending) or after the divorce is completed. There are two general circumstances when the court will entertain an Order compelling the other side to pay your attorney fees 1) if there is a big disparity in income or access to assets and 2) if the other side fails to follow court rules or proceedings during the case (for example, the other side does not respond to formal discovery requests in time, requiring your attorney to expend unnecessary time they would not have had to expend to file a motion to compel those response, the court may reimburse you for those specific additional expenses due to the wrong doing of the other side on that occasion).

The court must presume the case is contested if one person has filed a complaint for divorce and the other has filed an answer. If you wish to settle the matter out of court, you have several avenues to do, such as engaging in collaborative divorce before filing the divorce action in the court, proposing a settlement offer through attorneys, an informal settlement conference with the parties and attorneys, formal facilitative mediation with a mediator, and a settlement conference (usually conducted at the court, without the judge, shortly before the final trial). However, until the court receives a signed and filed agreement settling all matters, it must assume the case is going to trial in order to keep deadlines and timelines on track.

A pro con (or pro confessor) hearing is sometimes called a “final hearing” (but will usually note somewhere on the notice “pro confessor”). This is a hearing that is set to accept a consent judgment of divorce. The hearing only lasts for approximately 10 minutes, and if the parties have reached a full settlement, they present the court with their completely drafted and executed consent judgment of divorce. The court will take “proofs” which is the testimony of the Plaintiff (the initiating party) on the facts necessary for the court to find on the record are true to grant a divorce. A pro con hearing is not a time for calling witnesses or presenting your case to the court.

It is important to differentiate between a final hearing that is a “pro con” or “pro confessor” hearing and a final trial. If your final hearing is not a “pro con” hearing, but rather a trial, it is a hearing in which the court will hear testimony from witnesses, receive exhibits, and hear arguments about the remaining contested issues. Thereafter the court will make a decision and issue an Order.

Schmeltzer Law, your Divorce attorney in Traverse City and Northern Michigan!

Schmeltzer Law is based in Traverse City, Michigan, and practices throughout the state of Michigan.