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Being a Defendant in a Divorce Case

Contents

    If your spouse has filed for divorce he or she is the Plaintiff in the case. You are the Defendant.

    Being a defendant in a divorce case isn’t like being a defendant in a criminal case. It doesn’t mean you are the person who did something wrong or that you are in trouble. It doesn’t mean that your spouse gets to make all the decisions in your divorce. It just means that your spouse was the one to file the first paperwork and get the divorce case started.

    It is important for you to understand your rights and responsibilities as a party to a divorce case. This article tells you what you can expect.

    When Your Spouse Files for Divorce

    Consider Talking to a Lawyer

    If your spouse has filed for divorce, consider talking to a lawyer. This is especially important if your spouse has ever been verbally, emotionally, or physically abusive towards you.

    You cannot rely on your spouse’s lawyer to protect your interests - even if you and your spouse agree on most issues. If a lawyer has filed paperwork for your spouse or has appeared in court for your spouse, that person cannot represent you.

    If you need a lawyer and are low-income, you may qualify for free legal help. You can use the “Find a Lawyer” function on this website to look for a lawyer in your area.

    Accepting Service of the Divorce Papers

    If you know your spouse filed for divorce, do not try to avoid service (delivery) of the divorce papers. Avoiding service of divorce papers won’t do you any good - and could cause you problems.

    Avoiding service doesn’t mean your spouse won’t be able to divorce you. It may cause a slight delay at the beginning of the divorce case, and can result in not knowing what’s happening in the divorce. The court may also make important decisions about your children and property without your input.

    Read the Papers Carefully

    If you have been served with divorce papers, read them right away. It is important to understand what your spouse is asking of the court.

    Your divorce case is a court process to end your marriage, but other important things will also get decided in your divorce. These include dividing your marital property and debt and determining whether one of you will pay spousal support (alimony) to the other person. If you have children, your divorce judgment will also state where your children will live, when they will spend time with each parent, who will pay child support, and how much child support will be.

    When you are first served divorce papers expect to get the following:

    • Summons – A divorce case is started by filing a summons, a complaint and other required papers with the court. The summons is important because it tells you how long you have to file an answer to your spouse’s divorce complaint.

    • Complaint for Divorce– The complaint for divorce provides the court with information about you, your spouse, your marriage and your children. It also tells the court what your spouse is asking the court to order. The complaint will state whether your spouse wants the court to divide your property and debt, whether your spouse is asking for spousal support (alimony), and what parenting time and child support arrangements your spouse wants.

    When you are first served divorce papers you might also get:

    • Ex Parte Orders – Your spouse may have filed one or more motions asking the court to order something to happen at the start of the case, before you are even notified of the divorce. Ex parte orders are emergency orders that get decided by the judge without hearing your position. If you receive an ex parte order, the order is already in effect when you get it.

    Ex parte orders can be about many different things. Some of the most common are: requests to restrain (stop) both spouses from getting rid of money or other property until the divorce is final; requests to give temporary custody of children to one spouse; and requests to order child support payments.

    If you get an ex parte order with your divorce talk to a lawyer. You only have a short amount of time – 14 days from the day you are served - to file an objection to an ex parte order if you don’t agree with it. After 14 days the ex parte order becomes a temporary order which will normally last for at least as long as it takes for your divorce to become final.

    • Motions for Temporary Orders - Your spouse may have also filed one or more motions asking the court to enter temporary orders. Motions for temporary orders are often about the same types of things that ex parte orders are about, but the judge can’t sign a temporary order without holding a hearing first. If you get a motion for a temporary order it will include a notice of hearing that tells you the date, time and place where the hearing will be held.

    • Uniform Child Custody Jurisdiction Enforcement Act Affidavit – The information in this paper is required in all divorce cases that involve minor children. If this information is included in the Complaint for Divorce with Children, a separate affidavit will not be filed.

    • Verified Statement – This paper is required to be filed with the Friend of the Court in all divorce cases that involve minor children. Your spouse may or may not serve you with a copy.

    Pay Attention to Deadlines

    There are strict deadlines you must follow in a divorce case. If you want to file an answer to your spouse’s complaint for divorce and if you want to file a counterclaim for divorce, you must do so within the time stated on the summons. This is 21 days from the date of service if you were served personally (handed the papers) or 28 days from the date of service if you were served by mail or while you were outside of Michigan.

    If you do not file an answer by the deadline, the court can enter a default against you. If a default is entered, you are not allowed to participate in the case until you file a motion to have the default set aside and the judge enters an order setting the default aside. If your case is defaulted, this means that the court can make decisions about your marriage, property, and children without your input.

    If your spouse files any motions in the divorce case, a hearing will normally be scheduled. You have the option to file a timely response to the motion and appear at the court hearing.

    Decide How You Want to Respond

    If your spouse has filed for divorce, you don’t really have to do anything. If you do nothing, your spouse can pursue the divorce without your input, and you’ll end up divorced on your spouse’s terms (a default Judgment of Divorce will be entered). This may be fine if you don’t have children or property to divide, but you should consider participating in the case if you care about how those issues get decided and want the court to know what you want to happen in the divorce.

    To participate in the case you must file an answer to the divorce complaint by the deadline on the summons. You can also file a counterclaim for divorce, in which you also ask the court to give you a divorce and state the terms that you want. If you file a counterclaim for divorce, you must file and serve it at the same time that you file and serve your answer.

    You can use our Do-It-Yourself Answer and Counterclaim for Divorce to file an answer, or an answer and a counterclaim.

    What the Divorce Process Will Be Like

    Answer

    Your answer is a response to each paragraph of your spouse’s divorce complaint. You and your spouse may agree on all of the issues in your divorce, or you may have a “contested” case. A “contested” case means you don’t agree on all the major issues in your divorce. Major issues include child custody, parenting time, child support, property and debt division and spousal support (alimony).

    Counterclaim

    You can also file a counterclaim for divorce with your answer. This lets the court know what you would like to happen in your divorce.

    Filing a counterclaim for divorce can help you make sure your divorce goes forward.

    If you don’t file a counterclaim for divorce, and your spouse does something to have the original divorce case dismissed, your divorce case will end. Then, if you still want to get divorced you will have to start over by filing a new case and paying the filing fee.

    Waiting Period

    If you and your spouse do not have children together there is a two-month waiting period before the divorce can be finalized. If you and your spouse do have children together there is a six-month waiting period before the divorce can be finalized. The waiting period begins when your spouse filed the 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 waiting period.

    The court can waive part of the six-month waiting period in some cases. You need to show that waiting the full 180 days to finalize your divorce would cause a significant hardship to you or your children. The judge may agree to shorten your waiting period for other very compelling reasons. The length of your separation could be a factor in the judge’s decision. The judge cannot make the total waiting period less than 60 days.

    If you are not in default, you can file a motion to ask the judge to waive part of the waiting period. Complete the following blank forms:

    Title your motion “Motion to Waive the Statutory Waiting Period.” Explain in the body of the motion why your situation involves unusual hardship or another urgent reason for finalizing the divorce before the end of the full waiting period. File your forms at the court, and ask the clerk for a hearing date. You must mail a copy of everything you file to your spouse sooner than nine days before the date of your hearing. Fill out the top part of the order and bring it with you to the hearing.

    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 may be 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.

    Dismissal

    While your divorce is pending, you and your spouse may decide you don’t want to get divorced. If you want to dismiss your case, a lot depends on how far along you are in the divorce process.

    If your spouse filed a complaint for divorce, and you have not filed an answer or motion in the case, your spouse can file a Dismissal. Your spouse can do this without your consent. If you have already filed an answer or motion, then the two of you must agree to dismiss the divorce. In that situation, you must also sign the Dismissal.

    You can use our Do-It-Yourself Divorce Dismissal to prepare the forms you need.

    Even if your spouse filed the complaint for divorce, you could decide to keep the case going. If you have already filed an answer or motion and will not agree to dismiss the case, your spouse can file a motion asking the judge to dismiss the case. However, if you want to be divorced, it is likely that the judge will let the case continue.

    Finalizing the Divorce

    Your divorce might be resolved by:

    • Default judgment, if you do not file an answer or participate in the case;

    • Negotiated judgment, where you and your spouse decide the terms together;

    • Mediated agreement, where you and your spouse meet with a mediator and decide the terms;

    • Arbitration agreement, where you and your spouse agree to have an arbitrator hear and decide your case;

    • 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, an arbitrator’s decision, or a judge’s decision, the judge will sign a judgment of divorce at a final court hearing. The judgment will end your marriage and will decide child custody, parenting time, child support, spousal support (alimony), and property and debt division.

    It is the Plaintiff’s responsibility to draft the Judgment of Divorce and mail you a copy before the final hearing. If you agree with all of its terms, you can sign the Judgment and the judge will enter it by consent.

    If you are in default you still have the right to get a copy of the proposed Judgment before the final hearing. Then, you can attend the hearing and let the judge know which of the terms you don’t agree with. However, because you have been defaulted, you may have to take extra steps to ask the court to set-aside the default before you can participate.

    But What if I Don’t Want a Divorce?

    Michigan is a “no-fault” divorce state. No-fault means your spouse doesn’t have to prove cheating, abandonment, cruelty or anything else to get a divorce. Your spouse can get a divorce whether or not you agree. Your spouse can get a divorce even if he or she is the person who did something that made your marriage end. You do not have to be living apart for your spouse to file for divorce.

    The only ground for divorce in Michigan is 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 there has been a serious, permanent, marital breakdown. It means it is very unlikely that you and your spouse can work things out. If your spouse can testify that they believe this marital breakdown has happened, the court can grant the divorce. It doesn’t matter if you think your marriage can be saved.

    For more information about a Michigan divorce, read the articles, Introduction to Divorce without Children, Introduction to Divorce with Children, and the Common Questions above.