Divorce Process

Divorce is stressful:  it involves the termination of a relationship, a change of residence for one or both involved parties, financial pressures, and emotional concerns related to child custody.  Every divorce case takes on a life of its own, but the following stages are common.

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.