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Introduction to Divorce with Children

Contents

    What do I Need to Get a Divorce in Michigan?

    You or Your Spouse Must Be a Michigan Resident

    Either you or your spouse must have lived in Michigan for at least six months before you file. Your divorce must be filed in the circuit court in the county where either you or your spouse has lived for at least ten days. Most people file in the county where they live but you do not have to – you can file in the county where your spouse lives.

    You Don't Have to “Prove” Anything to Get a Divorce

    Michigan has “no-fault” divorce. No-fault means that you don’t have to prove cheating, abandonment, cruelty or anything else to get a divorce. Your spouse doesn't have to agree to give you a divorce. You can get a divorce even if you are the person who did something that made your marriage end. You do not need to have a legal separation or even be living apart in order to file for divorce.

    To get a divorce in Michigan at least one spouse must testify that “there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.” This means that there has been a serious, permanent, marital breakdown. It means that it is very unlikely that you and your spouse can work things out.

    Even though you don’t have to prove fault to get a divorce, a spouse’s behavior during the marriage can be an issue in resolving the divorce. The judge can consider fault if you and your spouse disagree about custody of your children or about how to divide your property.

    What Other Options Do I Have?

    Separate Maintenance

    An action for separate maintenance is similar to divorce but you are still married at the end of the case. The judge will decide custody and parenting time issues and divide marital property and debt. If you file a complaint for separate maintenance and your spouse files a counterclaim for divorce, the court must consider the case a divorce.

    You might file a separate maintenance case because you have a religious objection to divorce or want to stay married for other reasons.

    Annulment

    An annulment is a court decision that a marriage didn't happen. You can only get an annulment in certain situations. The legal reasons for annulment include:

    • Bigamy
    • Mental incompetence
    • Age
    • Relationship of the parties
    • Use of force or fraud in getting an agreement to marriage

    What Will Get Decided in My Divorce?

    Marriage Dissolution

    This is the legal term for divorce. The court will end your marriage and all the legal benefits that come with it. Because of Michigan’s no-fault law, divorces are granted for almost any reason, and it is not likely that you would have to prove that your marriage has broken down.

    Property and Debt Division

    Your marital property will be divided fairly.  Your marital debt will also be divided fairly. Marital property and debt are those that you acquired during your marriage. A retirement or pension plan is also marital property and the court can award the other spouse an interest in the plan.

    Separate property is property owned by one person before the marriage, or property inherited by one spouse during the marriage and kept separate from the couple's other assets. Separate property is usually returned to the owner.

    In most cases marital property and debts will be divided evenly between the spouses. If you and your spouse can’t agree about how to divide your property and debts, the court will decide how to divide them. In deciding what is fair, the court will consider:

    • The length of your marriage
    • Contributions to the marital estate
    • Your ages
    • Your health and your spouse’s health
    • Your standard of living during the marriage
    • The needs of each of you, and your current living situations
    • Your ability to make money
    • Your conduct during the marriage (fault)
    • Fairness

    For more information about property issues, read the articles Divorce Basics: Dividing Your Property and Debt and Real Estate and Divorce.

    Spousal Support (Alimony)

    The court will also decide if you or your spouse will pay spousal support (alimony). Alimony is not always awarded. When it is awarded it can be temporary or permanent, or can be paid all at once in a “lump sum.” When deciding whether to award spousal support, the court will consider:

    • The length of your marriage (spousal support more likely in long marriage)
    • Whether you or your spouse are at fault
    • Your ability to work
    • The source and amount of property you are each getting in the divorce
    • Your ages
    • Ability to pay spousal support
    • The needs of each of you, and your current living situations
    • Your health and your spouse’s health
    • Your standard of living during the marriage
    • Whether either of you is responsible to pay for the support of the other
    • Fairness

    Minor Children

    If you and your spouse have children together, the court will decide who they will live with, what the parenting time arrangements will be, and how much financial support each parent will provide.

    Custody

    Child custody refers to both legal custody and physical custody. Legal custody means the right to make important decisions about your children, like where they go to school, what religion they are, and non-emergency medical decisions. Physical custody refers to who your children live with.

    Both legal custody and physical custody can be sole or joint. Sole custody means only one parent has that type of custody. Joint custody means the parents share that type of custody.

    If parents have joint legal custody they both have the right to weigh in on important decisions about their children. If parents are not able to talk and make decisions together, the court will probably award one parent sole legal custody.

    If parents have joint physical custody, the children live with each parent at different times. If one parent has sole physical custody the other parent will normally have parenting time (visitation).

    The court makes custody decisions (legal and physical) based on “the best interests of the child.”  To decide what custody arrangements are in the best interests of the child, the court must consider 12 specific factors. To learn more about the “best interests factors” read the article, The “Best Interests of the Child” Factors. To learn more about how child custody is decided read the articles, Overview of a Michigan Custody Case and Custody and Parenting Time.

    Parenting Time

    If one parent is given sole physical custody the other parent is usually given parenting time. Or, if the parents have joint physical custody, a parenting time schedule can spell out when the children spend time with each parent. Parenting time can be granted for specific dates and times or it can be left for the parents to work out. Sometimes the court will order parenting time to be supervised by a third party, such as a grandparent, other relative, or friend, or at a supervised visitation center.

    Parenting time decisions are also based on the “best interests of the child.” There is a presumption that it is in the best interests of children to have a relationship with both parents. But, in some cases it might be inappropriate for a parent to have parenting time, such as with a parent who is violent or irresponsible.

    Child Support

    Child support is awarded using Michigan’s Child Support Formula (MCSF). The formula is based on the income of both parents, the number of children, and how often the children stay with each parent. Child support is usually ordered until a child is 18. But, it can continue until the child is 19 ½ if the child is in high school full time and is likely to graduate.

    A child support order also includes amounts for medical and child care expenses, and specific information about which parent will provide health insurance for the children. To learn more about child support read the articles, Child Support in a Nutshell and Friend of the Court Overview.

    Friend of the Court

    While your divorce is pending you and your spouse might be referred to the Friend of the Court to meet with an evaluator or case worker. Someone from the Friend of the Court may interview you, your spouse, your children, and other people who may have information about your case. The Friend of the Court will also ask you for information about your income. The Friend of the Court worker may try to help you and your spouse reach an agreement about custody, parenting time and child support. If you can't reach an agreement, the Friend of the Court will probably make a recommendation to the court. The recommendation is not a court order and will not become a court order unless a judge signs it.

    What is the Divorce Process Like?

    Starting the Divorce

    A divorce case is started by filing a summons, a complaint and other required papers with the court. You can start your divorce process by completing our Automated Online Divorce Forms. After your forms are filed you must have your spouse served with the papers. Service is usually done by having a sheriff’s deputy or another person hand a copy of the papers to your spouse in person, or by sending the documents to your spouse by certified mail. For more detailed information about service read the article, How to Serve Divorce Papers.

    Answer

    Your spouse may file an answer to your divorce complaint.  The answer will respond paragraph by paragraph to your divorce complaint, and will tell you and the court which parts of your complaint your spouse agrees with and which parts of your complaint your spouse disagrees with.

    If your spouse files an answer and you don’t agree on all the major issues in your divorce, you may want to consider talking to a lawyer. If you need a lawyer and are low-income, you may qualify for free legal help. You can use the "Find a Lawyer" section on this page to look for legal help in your area.

    If your spouse doesn't file an answer, or if you agree on all of the terms of your divorce, you have an uncontested divorce. However, just because a divorce is uncontested doesn’t mean the court will approve all of your decisions. The terms must still be reasonable and must follow the law. For example, the property division must be fair and the custody arrangement must be in the children’s best interests.

    Waiting Period

    If you and your spouse have children together there is a six-month waiting period before you can get a divorce. The waiting period begins when you file your divorce even if you and your spouse were separated before that. If you and your spouse don't agree on everything, your divorce can take much longer than the six-month waiting period.

    While your case is pending you may be referred to the Friend of the Court (for child related issues) and also to a mediator. A mediator is often assigned to help you and your spouse reach an agreement about the issues in your case, such as child custody, parenting time, child support, property and debt division and spousal support (alimony). If you can’t reach an agreement about these things the mediator may issue a recommendation. Note: If there has been domestic violence in your marriage, mediation is not recommended. Let the court know if you have a personal protection order or if you are afraid to negotiate with your spouse.

    Finalizing the Divorce

    If you use our Automated Online Divorce Forms, you will have the proper forms to take you through your entire divorce. Your divorce might be resolved in one of the following ways:

    • By default judgment, if your spouse does not file an answer or participate in the case
    • By negotiated judgment, where you and your spouse decide the terms together
    • By mediated agreement, where you and your spouse meet with a mediator and decide the terms
    • By trial, where the judge makes a decision because you and your spouse can’t reach an agreement

    Judgment of Divorce

    After there is a default, an agreement, or a judge’s decision, the judge will sign a judgment of divorce. The judgment will end your marriage and will decide child custody, parenting time, child support, spousal support (alimony), and property and debt division.

    For more information about a Michigan divorce with children, visit the I Need a Divorce with Children toolkit or complete the Automated Online Divorce forms.