1. Decision to Divorce
For
whatever reason, one or both parties decide to end their marriage. If the decision is mutual and the parties can
agree on all of the terms of the divorce as it pertains to child custody, child
support, spousal support, child custody, and property distribution, a so-called
“uncontested divorce” can result. An
uncontested divorce still requires a divorce complaint to be filed, service of
process to occur, a court hearing to occur, and a judgement of divorce to be
drafted and signed by a judge, but such a divorce does not involve the burdens
associated with a so-called “high conflict divorce”: pre-trial motion practice—such as motions for
personal protection orders and motions for interim spousal or child support—,
discovery—including requests for admissions, interrogatories, request for
production of documents, and depositions—, court-ordered mediation, a trial,
appeals, and post-judgment motion practice that can last for years.
One
should privately consult with their own attorney upon deciding to seek a
divorce—even if an uncontested divorce is planned, because uncontested divorces
can become contested if a dispute arises.
Furthermore, an attorney owes a fiduciary duty of loyalty only to one
person: they cannot represent the
interests of two adverse parties in the same divorce action.
If
domestic violence is involved, the battered spouse should take great care to
make sure that the batterer does not discover the divorce is contemplated—the
battered spouse should: (1) not tell
anyone that they are planning to divorce; (2) instruct the attorneys with whom
they consult to not leave any voicemails or send any letters or emails to them
that the batterer may discover prior to the separation; and (3) make an escape
plan to leave the batterer in as safe a manner as possible.
2. Filing and Service of the
Complaint for Divorce
Upon
being retained, the divorce attorney will draft, file with the appropriate
court of common pleas (Ohio) or circuit court (Michigan), and serve a complaint
for divorce upon the defendant spouse.
Upon being served, the defendant spouse will have a limited period of
time to file a formal written response with the court; if no response is filed,
the plaintiff spouse can seek a default judgment, which means that they get the
divorce on their terms, subject to the judge’s approval.
When
a complaint is filed with a court, the judge is randomly selected. The assigned judge will be the judge for the
case unless they cease being a judge of the applicable court or recusal occurs
due to a conflict of interest.
3. Pre-Trial Litigation (Motion Practice and Discovery)
In
contested divorce cases, pre-trial motion practice can occur. A party to the divorce action can request
that their attorney fee’s be paid by their spouse if certain conditions are
met, they can seek a personal protection order if domestic violence, stalking,
or harassment is occurring, and/or they can seek interim spousal or child
support pending the resolution of the case.
To
prepare for trial and to gain a better position for motion practice and
settlement negotiations, a party to a contested divorce action can demand that
their spouse answer questions under penalty of perjury that are called “interrogatories,”
can demand that records be produced—including but not limited to tax returns,
bank records, and medical records—, can demand that admissions be made or
denied, and can demand that a deposition occur of
their spouse or a witness at which questions are asked of them that must be
answered under penalty of perjury.
One
or more subpoenas can be issued to compel witnesses to testify at depositions
or court events or to produce documents.
Additionally,
evidence can be sought via other means, such as by utilizing private
investigators to engage in surveillance and research, and the Michigan Freedom
of Information Act, MCL 15.231 et seq.,
and the Ohio Open Records Act, R.C. §§ 149.43 et seq., can be used to seek documents in the possession of
government agencies, including but not limited to 911 calls and police reports.
4. Mediation
The
parties may agree or be ordered by a judge to attend one or more
mediations. At a mediation, the parties—who
are present with their attorneys—are in separate rooms, and a mediator who is
experienced with family law matters will spend time with each party in attempt
to facilitate a resolution to one or more contested issues of the divorce
action. If all issues are resolved, then
settlement occurs, but if one or more issues remain contested, then a trial
will result. At mediation, settlement on
one or more issues only occurs if all parties are in agreement—the outcome of a
mediation is not coerced.
Mediation
is worthwhile to pursue insofar as it permits the parties to settle the case on
their terms without incurring additional attorney’s fees to litigate a trial
and risk an adverse decision by the judge.
If
the parties agree to all terms of the divorce, then a “consent judgment of
divorce” will be drafted and filed by the attorneys for the parties with the
court for the judge’s review and signature.
The judgment will contain the terms of the divorce, and upon being
signed the divorce is finalized—subject to post-judgment motion practice.
A
party should not agree to the terms of settlement or a consent judgment of
divorce if they are not completely satisfied with it, because it can be
difficult to appeal or attempt to modify thereafter.
5. Trial
If
the parties do not agree to a settlement, a trial will result. Typically, the trial will occur nine to
twelve months after the complaint for divorce is filed. There is no jury for divorce trials in
Michigan or Ohio—for such trials, the judge acts as the judge and jury. Witnesses will be subpoenaed and will be made
to testify, exhibits may be offered into evidence, and the judge will make a
ruling that will be reduced into writing as the “judgment of divorce.” Depending upon the case and the issues that
are contested, a trial can last as little as one day or require days’ worth of
hearings that occur over the course of weeks.
6. Appeal
If
one or both parties disagree with an order of the court or the judgment of divorce,
an appeal can be filed with the applicable court of appeals. Although cases involving child custody are
expedited by appellate courts, appeals can nevertheless take six months to over
one year to be resolved. Additionally,
appellate courts oftentimes do not resolve issues—if the trial court erred,
then the appellate court will remand the case back to the trial court for further
hearings.
7. Post-Judgment Motion Practice
If a
change of circumstances or proper cause exists to warrant a review, and the statutory
best interest factors of the minor child warrants it, a judge can modify a
pre-existing judgment of divorce’s terms concerning child custody. In essence, if a minor child is young at the
time of the divorce, then the divorce case can remain relatively active until
the minor child becomes an adult.
Furthermore, unless spousal support was barred via a
consent judgment of divorce, a party to a divorce action may seek for spousal
support to be modified for good cause after the judgment is entered.
Michigan's Friend of the Court
In Michigan, each circuit court utilizes a "Friend of the Court" during and after divorce cases, which is a lawyer who is knowledgeable of family law and will make recommendations to the judge that become court orders unless a party makes timely objections to the recommendations. The Friend of the Court many times will review evidence and make recommendations concerning child custody and child support.