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Introduction to Divorce with Minor 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 the last six months before filing. In general, 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 before filing. 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, 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 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 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.

    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. There will be decisions in your case about custody, parenting time, and child support. Marital property and debt will be divided, and spousal support may be ordered. 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 did not happen. You can only get an annulment in certain situations. The legal reasons for annulment include bigamy, mental incompetence, age, or relationship of the parties. You can also get an annulment if your spouse used force or fraud to get your agreement to marry.

    To learn more, read Alternatives to Divorce: Separate Maintenance and Annulment.

    What Will Get Decided in My Divorce?

    End of Marriage

    When you get a divorce, the judge will end your marriage and the legal benefits that come with it. Because of Michigan’s no-fault law, you will not have to give a reason for the breakdown of the marriage.

    Property and Debt Division

    Marital property and debt are those that you and your spouse acquired during your marriage. 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.  

    In deciding what is fair, the judge will also consider factors such as:

    • 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 property inherited by one spouse during the marriage and kept separate from the couple's other assets. The owner of separate property usually keeps it.

    To learn more about property issues, read Divorce Basics: Dividing Your Property and Debt and Real Estate and Divorce.

    Spousal Support (Alimony)

    If you or your spouse requests 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 the following factors:

    • The length of your marriage (spousal support is more likely if your marriage was long-term)
    • 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
    • If you live with someone else, the effect this has on your financial status
    • Fairness

    Minor Children

    If you and your spouse have minor children together, the following issues will be decided in your divorce:

    • Custody
    • Parenting time
    • Child support
    • Which parent will claim the children as dependents on tax returns

    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 (if any), and medical decisions. Physical custody refers to whom 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 judge 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 judge makes custody decisions (legal and physical) based on “the best interests of the child.” To decide what custody arrangements are in the child's best interests, the judge must consider 12 specific factors. To learn more, read The “Best Interests of the Child” Factors and Custody and Parenting Time.

    Parenting Time

    If one parent gets sole physical custody, the other parent usually gets parenting time. Or if the parents have joint physical custody, a parenting time schedule can say 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 judge will order parenting time to be supervised by a third party, such as a grandparent or other relative.

    A judge's parenting time decisions are also based on the “best interests of the child.” The law presumes that it is in the best interests of a child 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 calculated using the Michigan Child Support Formula. The formula is based on many factors, including the income of both parents, the number of children, and the number of overnights the child spends with each parent. Child support usually ends when a child turns 18. 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 Child Support in a Nutshell.

    You can use the MiChildSupport Calculator on the Michigan Department of Health and Human Services website to find out what the support amount might be in your case.

    Tax Exemption

    Unless you and your spouse agree otherwise or the judge orders something different, federal law gives the dependency exemption to the custodial parent. In general, this is the parent with whom the child spends more nights during the year.

    In your divorce, you and your spouse can agree to any of the following:

    • Your spouse will claim the children as dependents;
    • You will claim the children as dependents;
    • Each of you will claim different children; or
    • You will claim the children in alternating years (every other year).

    If you and your spouse cannot agree, the judge will decide for you. 

    Friend of the Court

    The Friend of the Court (FOC) helps the judge with custody, parenting time, and child support. In some counties, you and your spouse will meet with a FOC evaluator or caseworker while your divorce is pending. The worker may interview you, your spouse, your children, and other people who may have information about your case. The worker will also ask you for information about your income in order to calculate child support.

    The Friend of the Court may try to help you and your spouse agree on custody and parenting time. If you can't reach an agreement, the FOC will likely make a recommendation to the judge. The recommendation is not a court order, but it will become a court order if the judge signs it. Before this happens, you will have a chance to object to the recommendation. To learn more, read Friend of the Court Overview.

    What Is the Divorce Process Like?

    Starting the Divorce

    A divorce case begins when you file a summons, a complaint, and other required papers with the court. You can prepare the forms you need with our Do-It-Yourself Divorce. After you file your forms in the court clerk's office, you must have your spouse served with the papers. Service is usually done by having another person give the papers to your spouse in person or send the papers to your spouse by registered or certified mail. To learn more, read How to Serve Divorce Papers.

    Answer

    Your spouse may file an answer to your divorce complaint. The answer should respond to each paragraph of your divorce complaint. In the answer, your spouse should tell you and the judge which parts of your complaint they agree with and which parts they disagree 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. Use Find a Lawyer 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 judge will approve all of your requests or agreements. The terms of your divorce must still be reasonable and must follow the law. For example, the property division must be fair and the custody arrangements 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 your divorce can be finished. 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 longer than six months.

    The judge can shorten the waiting period if you show that waiting the full 180 days to finish your divorce would cause an unusual hardship to you or your children. The judge may also shorten the waiting period for other compelling reasons. The judge cannot make the total waiting period less than 60 days.

    If you want to ask the judge to shorten the waiting period, you must file a motion. 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 clerk's office, and ask the clerk for a hearing date. You must mail a copy of everything you file to your spouse at least nine days before the date of your hearing. Fill out the top part of the order and bring it with you to the hearing. If you need help doing this, use Find a Lawyer.

    You may be referred to a mediator during the waiting period in your case. A mediator is often assigned to help you and your spouse reach an agreement about the issues in your case. If you can’t reach an agreement, the mediator may issue a recommendation. 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. To learn more, read Mediation and Other Forms of Settlement.

    Dismissal

    While your divorce is pending, you and your spouse may decide you don’t want to get divorced. If you filed a complaint for divorce and your spouse has not filed an answer or motion in the case, you can file a Dismissal form without your spouse’s signature. If your spouse has already filed an answer or motion in the case, you can only file a Dismissal if you and your spouse both sign it.

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

    Finalizing the Divorce

    If you use our Do-It-Yourself Divorce, you will have the 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 trial, you can submit a proposed Judgment of Divorce for the judge to sign. The judgment will end your marriage and state what you and your ex-spouse must do regarding child custody, parenting time, child support, spousal support (alimony), and property and debt division.

    For more information about a Michigan divorce with children, go to the toolkit I Need a Divorce and I Have Children.