Frequently Asked Questions
Michigan laws can be quite confusing; even for attorneys. Often, clients will have more questions after speaking with an attorney than they did before the consultation. Therefore, we have addressed some of the questions most commonly asked of lawyers here. Click the questions below to expand them and see the answers.
My spouse is cheating on me, can I get a divorce?
In Michigan, we are a No Fault Divorce State. Meaning, you are not required to allege grounds to receive a divorce in Michigan. It also means that if one party requests a divorce, it will be granted, regardless of whether or not the other party wants to get divorced. Your spouse cannot keep you from getting a divorce, although he/she can make it very difficult and time consuming. Keep in mind that although an allegation of fault is not required in order to obtain a divorce, fault still may be an issue in a divorce with respect to the division of property, spousal support and custody.
If I do not sign anything, my spouse cannot get a divorce. Right?
Wrong. If your spouse has properly filed a Summons and Complaint for Divorce, and you have been properly served, and you do nothing, your spouse can receive a Default Judgment of Divorce, awarding him/her everything he/she requests, by virtue of your failure to respond to the Court in writing.
Can my spouse and I share an attorney?
Not really. Basically, if only one attorney is hired, that attorney can represent only one of you, while the other party would remain unrepresented. Ethically, an attorney should not represent both parties, as it would be a conflict of interest. So be aware, if there is only one attorney, that attorney is representing only the party who hired him/her.
I heard there is no alimony in Michigan, is that correct?
That is not correct. Alimony is still alive and well in Michigan. In Michigan, alimony is referred to as Spousal Support. There are several factors involved in determining if and for how long spousal support should be awarded. Spousal support is not awarded in every case, and is only awarded if it is requested and meets the proper factors.
How do I get a legal separation?
In the state of Michigan we do not have anything called a legal separation where you file a paper and you are immediately legally separated. We do have a Separate Maintenance action, which is basically what people in Michigan are thinking about when they talk about a legal separation.
What is the difference between a contested divorce and uncontested divorce?
A true uncontested divorce is where one party files and the other party never files an answer and the party who files obtains a default judgment. In that sense, most cases are contested in some manner, whether it be property settlement, spousal support, custody, parenting time or child support. Although, in Michigan, most cases settle before going to trial.
If I leave the house, can my spouse charge me with abandonment?
A divorce case is not a criminal proceeding, therefore you cannot be charged with anything. If you leave your children and disappear, it is possible that the State of Michigan may charge you with criminal neglect due to abandonment. Otherwise the term abandonment is really not one used in a divorce proceeding. Although, there are certain things you need to know if you are considering leaving the martial home during the proceedings:
- If you leave the house for the short period of time during the pendency of the divorce proceeding, you will not lose your share of the equity in the house. However, the longer you are gone, the more likely you will lose your share of the equity.
- You may be placing yourself in a position where all your personal items that you leave at the home somehow disappear or are destroyed.
- If you leave the home, your spouse may file with the court for an Order for Exclusive Occupancy allowing that only he/she is entitled to stay in the home during the divorce proceeding, and that you cannot return to the home.
- If you leave the home during the pendency of the divorce, the court may still require you to pay part of the household bills during the divorce. -If you leave the home during the pendency of the divorce, you may lose your claim for the home to be awarded to you.
- If you leave the home and you leave the children at the home with your spouse, you may lose the possibility of receiving custody of the children.
We have only been married a month, can I get an annulment?
In Michigan, a legal annulment is not based upon the length of time you have been married. It is based upon either the inability to marry at the time of the marriage or fraud in the contract of marriage. Specifically, Michigan statutes provides that an annulment can only be granted in cases of:
- incapacity due to age
- prohibitively related
- incapacity due to a mental condition
- physical incapacity
- consent obtained by force or fraud
- foreign law violations
So, very few marriages would actually qualify for an annulment. However, after you receive a legal divorce, your religion may provide some form of religious annulment.
Can I make my spouse leave the home during the divorce?
Most people live together during the divorce proceedings. Although this may be emotionally difficult, it is generally more financially practical to live together until the judgment is entered or the home is sold or refinanced. If there is an issue of domestic violence, or if one party has established a residence elsewhere, the Judge may issue an Order of Exclusive Occupancy, which states that only one of the parties may live in the marital home during the proceeding. If your spouse leaves the martial home for a few days, and comes back to the home and you refuse him/her entrance to the home, the local police department may enforce his/her ability to return to the home, unless there is an Order for Exclusive Occupancy or a Personal Protection Order which forbids him/her from coming to the home.
My spouse has left the home, do I have to let them back in?
Generally, if there is no court order stating otherwise, and your spouse has only been gone a short time, the police will enforce his/her right to return to the home. Once you file for divorce, it may be possible to receive an order for exclusive occupancy under certain circumstances such as him having left the home or due to domestic violence issues. If you have been a victim of violence from your spouse or he/she has made violent threats, it may be possible to receive a Personal Protection Order (PPO) from the court without filing for divorce. This type of order may include a provision that he/she is prohibited from appearing where you live.
My spouse has left the marital home, do I have to let him/her visit with the kids?
If there is no court order regarding custody or parenting time (visitation), then both of you technically have custody of the children and if he/she asks the police to enforce his right to spend time with the children, they will generally back him/her up. Remember that one of the best interest of the child factors is: The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. If you fail to encourage parenting time with the other parent, it may be used against you at a later date. Obviously, there are some situations where it would be appropriate to go to court to ask for a restriction on parenting time, but without a court order you should speak with an attorney before withholding parenting time from your spouse or ex spouse.
How old before my child can choose who he/she lives with?
Contrary to popular belief, in Michigan the child must be an adult, age 18, before he/she can decide with whom they will live. Although the reasonable preference of the minor child is one of the Best Interest of the Child Factors, the Court takes that factor in consideration as equally as the other factors. So, while the preference of the child is taken into consideration, it is not given any more weight than any other factor. Practically, however, most police departments in Michigan will not enforce the return of a 16 year old to one parent when that 16 year old is with the other parent.
After the divorce, can the children and I move?
There are specific statutes in Michigan that require a Judgment of Divorce with minor children to state that:
- You must petition the Court if you wish to change the domicile of the children from the state of Michigan.
- If the parents both have legal custody, and one of them wishes to move more than 100 miles away from the other parent,
they must either have the agreement of the other party or petition the Court.
- In certain circumstances you can petition the Court to move outside of these geographic limitations. If both parents
agree to allow the one parent to move, the Court will generally approve an agreed upon order.
My children's mother/father has not paid child support in a while, can I withhold parenting time?
The simple answer is, NO. As far as the court is concerned, child support and parenting time are two separate issues. If your children’s mother/father fails to pay child support, she/he can be held in contempt of court, or may even be charged with a felony. If you fail to provide the scheduled parenting time, you too can be held in contempt of court. Again, remember that one of the best interest of the child factors is: The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. If you fail to encourage parenting time with the other parent, it may be used against you at a later date.