Being a Defendant in a Divorce Case

When Your Spouse Files for Divorce

There are several things to do when you receive divorce papers from your spouse.

Consider Talking to a Lawyer

If your spouse has filed for divorce, consider talking to a lawyer about your rights and options. Representing yourself in a divorce case is not easy.

The more complicated the issues in your divorce are, the more important it may be to have a lawyer. Consider talking to a lawyer if:

• You own real estate;
• You have a pension or retirement account;
• You have children born while you were married, but one spouse is not the parent;
• You need spousal support (alimony);
• Your spouse has been emotionally, verbally or physically abusive;
• You and your spouse disagree on one or more major issues in your divorce.

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.

Accept 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 it 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 who will have physical and legal custody, when the children will spend time with each parent (parenting time), who will pay child support, and how much child support will be.

Decide How You Want to Respond

If you do nothing after your spouse files for divorce, your spouse can pursue the divorce without your input. If this happens, a judge can sign the final divorce order (the Judgment of Divorce) with only the terms that your spouse wants. This would be called a default judgment. This may be fine with you if you don’t have children, you don't have marital property and debt to divide, and your spouse is not asking for spousal support. However, consider participating if you do have children, property, debt, or other important issues in your divorce.

To participate in the divorce case as the defendant, you will need to prepare and file an Answer to Complaint for Divorce.  

An Answer to Complaint for Divorce is a document where you explain whether you agree or disagree with each statement in the Plaintiff's Complaint for Divorce. If you disagree, you will explain why. You can prepare and download an Answer to Complaint for Divorce form using the Do-It-Yourself Answer and Counterclaim for Divorce. There are step-by-step instructions for filing the Answer and continuing with the divorce process in the resource pages Responding to Divorce with Children and Responding to Divorce without Children.

What Will Get Decided in My Divorce?

The following issues will get decided in your divorce.

End of Marriage

When you get a divorce, the judge will end your marriage. Because of Michigan’s no-fault law, no one will have to give a reason for the breakdown of the marriage.

Property and Debt Division

Property or debt that you get during your marriage is usually considered marital property and debt. Marital property may include real estate, pensions, insurance, retirement accounts, and investment accounts, among other kinds of property. If you and your spouse don’t agree on how to divide your property and debt, the judge will decide. Michigan law says marital property and debt must be divided fairly. In most cases, this means dividing them evenly. 

 To decide what is fair, the judge will consider these factors:

• The length of your marriage
• Your contribution to the marital estate
• Your age
• Your health
• Your standard of living during the marriage
• Your needs and your current living situation
• Your ability to earn money
• Your conduct during the marriage (fault)

Separate property is property owned by one spouse before the marriage or inherited by one spouse, and kept separate from the couple's other assets. The owner of separate property usually keeps it.

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

Spousal Support (Alimony)

If you or your spouse asks for spousal support and you can't reach an agreement, the judge will also decide this issue. Spousal support is not always awarded. When it is awarded, it can be temporary or permanent. When deciding whether to award spousal support, the judge will consider these factors:

• The length of your marriage (spousal support is more likely in a long marriage)
• Your conduct during the marriage
• Your ability to work
• The source and amount of property you are getting in the divorce
• Your age
• Ability to pay spousal support
• Your needs and your current living situation
• Your health
• Your standard of living during the marriage
• Whether you are responsible to pay for the support of others
• Contributions to the marital estate
• If you live with someone else, the effect this has on your financial status
• Fairness

For more information, read Spousal Support (Alimony) in a Nutshell.

Minor Children

There will also be decisions in your divorce about children who have both you and your spouse as legal parents.

Children who are included in your divorce are:

• Minor children born or conceived during your marriage
• Legally adopted children 
• Minor children you and your spouse had together who were born before your marriage, as long as the husband's paternity was established by Affidavit of Parentage or court order

 The following issues about these children will be decided in your divorce:

• Custody
• Parenting time
• Child support
• Which parent will claim the child tax credit

What Will the Divorce Process Be Like?

Below is an overview of the divorce process if you are a defendant. For detailed, step-by-step instructions, read the Instructions in the resource page that applies to you: Responding to Divorce with Children or Responding to Divorce without Children.

File an Answer to Complaint for Divorce (and a Counterclaim, if needed)

There are strict deadlines you must follow in a divorce case. To participate in the case, you must file and serve an Answer to Complaint for Divorce. Do this within 21 days from the date of service if you were personally served (handed the Summons and Complaint for Divorce), or 28 days from the date of service if you were served by mail or while you were outside of Michigan.

If needed, file a Counterclaim for Divorce along with the Answer.

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 unless you file a motion to have the default set aside and the judge grants your motion. If you are defaulted, the judge can make decisions about your marital property and debt, children, and other issues without your input.

If you need a motion to set aside a default, you can use the Motion to Set Aside Default/Default Judgment (Domestic Relations) on the Michigan One Court of Justice website.

Serve (send) a copy of everything you file to the Plaintiff.

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 do have children together, there is a six-month waiting period before the divorce can be finalized. The waiting period begins when your spouse files 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 longer than the waiting period.

In a divorce with children, the judge can waive part of the six-month waiting period in some cases. This can only happen if a party shows the waiting period should be shortened due to an "unusual hardship" or that there is a compelling need to shorten the waiting period. The judge cannot make the total waiting period less than 60 days.

Friend of the Court

The Friend of the Court (FOC) is part of the family division of the circuit court. The FOC helps the court in cases involving custody, parenting time, and child support. Some of the duties the FOC performs are:

• Investigating and issuing recommendations on custody, parenting time, and child support
• Helping the parties settle disputes during and after their case
• Providing enforcement services on existing custody, parenting time, and support orders

In some counties, all divorce cases with minor children are automatically scheduled for a meeting with the Friend of the Court. There are different types of Friend of the Court meetings, such as mediation, where the Friend of the Court worker tries to help parties reach agreements on issues involving their children. Some types of Friend of the Court meetings may result in a recommendation to the judge on custody, parenting time, and support.

To learn more, read Friend of the Court Overview.

Mediation

You may be referred to mediation during the waiting period to help you and your spouse reach an agreement about the contested issues in your case (for example: property and debt division, child custody, etc.). A mediator is a neutral person who helps you and the other party try to work out an agreement. You could be referred to mediation if you agree to it or if the judge orders it. There may be a fee. A mediator may be a Friend of the Court mediator or a private mediator. To learn more, read Mediation and Other Forms of Settlement and Friend of the Court Overview.

Some cases are not appropriate for mediation. Your case might be excused from mediation for any of the following reasons:

• You or the other party have a personal protection order against the other
• Your children have been abused or neglected
• There has been domestic violence in your relationship
• You or the other party is unable to negotiate for themselves at the mediation
• There is reason to believe that the health or safety of one or both of you will be put at risk by mediation

Arbitration

You and your spouse may agree to go to arbitration if there are issues in your case you don't agree on. Arbitration is a voluntary process. This means both parties have to agree to go to arbitration, and they must agree on what issue(s) the arbitrator will decide. The parties pay the arbitrator a fee to hear and decide their case.

Arbitration is different from mediation because the arbitrator’s decisions are binding in the same way that a judge's decisions are binding. The arbitrator is a neutral third party who is trained in making these decisions. Their decisions become part of the final judgment in a court case.

Motions

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. A written response should be filed at least three days before the hearing. You must also have it served at least three days before the hearing if it is served on your spouse in person, or at least five days before the hearing if served by mail.

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 tool 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 do not agree to dismiss the case, your spouse can file a motion asking the judge to dismiss it. 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 the terms of your divorce
• Trial, where the judge hears and decides the terms of your 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.

What Are the Requirements for Getting a Divorce in Michigan?

Below are certain requirements for getting a divorce in Michigan, and other information.

You or Your Spouse Must Be a Resident

Either you or your spouse must have lived in Michigan for at least the last 180 days before the case is filed. The case must be filed in circuit court in the county where either you or your spouse has lived for at least ten days before filing. Most people file in the county where they live, but it could be filed where the other spouse lives instead.

Neither Party Has to “Prove” Anything to Get a Divorce

Michigan has “no-fault” divorce. No-fault means neither party has to prove cheating, abandonment, cruelty, or anything else to get a divorce. Spouses do not have to agree to get a 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 there has been a serious, permanent, marital breakdown. It means that it is very unlikely that you and your spouse can work things out.

Although you don’t have to prove fault to get a divorce, a spouse’s behavior during the marriage can impact the outcomes of your divorce. The judge can consider fault in making decisions about spousal support (alimony) and dividing property.

Place of Marriage, Citizenship, and Common Law Marriage

If you were married in another state or country, you can still get divorced in Michigan as long as the residency requirements are met. Neither spouse has to be a U.S. citizen to get a divorce in Michigan. But if your right to live in the United States depends on your marriage, divorce may affect that right. If you are in this situation, consider talking to a lawyer. If you need a lawyer and have low income, you may qualify for free legal help. Use the Guide to Legal Help to find a lawyer or legal services in your area.

What If I Am Pregnant or My Spouse Is Pregnant?

If you or your spouse is pregnant during the divorce, the judge may require you to wait to enter the Judgment of Divorce (the final order in your case) until after the birth. A judge might do this to make sure the custody, parenting time, and child support provisions in the Judgment of Divorce are complete. Or the judge may sign the Judgment of Divorce but require you to return to court after the birth to add custody, parenting time, and child support provisions to the Judgment.

What If There Is a Paternity Issue?

If a child is born or conceived during a marriage, and the mother's husband is not the father, this adds another legal issue to resolve. Under Michigan law, a husband is presumed to be the legal father of any child born or conceived during the marriage. To ask a judge to revoke the husband's legal paternity, either the mother, the husband, or the biological father must file a Motion or Complaint to Determine Child Born Out of Wedlock. This can be filed as a motion in a divorce case after the divorce is filed. If no one files to revoke paternity, the husband will remain the child's legal father, and the biological father will not have any parental rights or responsibilities.

You can use the Do-It-Yourself Revoke Paternity Established by Marriage tool to prepare the forms you need to ask the judge to revoke paternity in this situation.

If the wife is currently pregnant and her husband is not the father, either spouse or the biological father can file to revoke paternity after the child is born, but not before.

What If There Has Been Domestic Violence?

Domestic violence can take many forms, including physical assault, sexual assault, emotional abuse, isolation, control of money, threats, stalking, and intimidation. Abusers use these behaviors to try to gain and keep power and control over another person. Domestic violence is serious and can affect many issues in your divorce, such as custody, parenting time and property division.

Domestic violence can get worse when a relationship ends. It is important for you to take steps to be safe. To learn more, read Domestic Violence and Divorce.

Can I Change My Name as Part of the Divorce?

If you are a woman and you changed your last name when you were married, you have the choice of keeping your married name or changing it in your divorce. Your Judgment of Divorce can restore your maiden name or the last name you used before your marriage. Or the judge can allow you to take a different last name. If you are the defendant, you must file a Counterclaim for Divorce to request a name change.

The law in Michigan doesn’t work the same way for men. Men aren’t able to change their name as part of the divorce. Instead, they must go through the process of petitioning the court for a name change. To learn more, go to the Filing for a Name Change resource page.

What Will Happen to My Health Insurance?

Although Michigan law requires parents to provide health insurance for their children, there are no such laws for a spouse. However, if you currently have health insurance through your spouse's employer, the court may require your spouse to maintain your health insurance during the divorce process.

Under COBRA (a federal law), your spouse's employer must allow you to be covered by its health insurer for up to three years after your divorce. However, you must pay the premiums, which will probably be more expensive than when you were covered as a spouse. Also, COBRA doesn’t apply to very small companies (those with fewer than 20 employees). To learn more, read the COBRA Continuation Coverage page on the U.S. Department of Labor website.

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 they 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 judge can grant the divorce. It doesn’t matter if you think your marriage can be saved.