Divorce, separation or dealing with other family and child-related issues does not have to be as difficult for families as is often anticipated. The tides are changing for you and your family and mediation, and the philosophy behind mediation, can help make the transition for you and your family a more peaceful and efficient one.
Our goal as attorneys on your behalf is to help families in transition in a non-adversarial way to move on to a new stage of life. We recognize as well, however, that the mediation does not work in every situation. When necessary, we are prepared to work within the court system to zealously represent you in order to achieve your goals in divorce.
If we litigate your case, we will do so within the Family Court in the county in which you live and you will be guided by the court system, its rules, deadlines and the decisions of a judge assigned to your case. Your divorce case begins with the filing of a Complaint for Divorce. If your spouse has already filed, then you have either 21 days (if personally served with the Complaint) or 28 days (if you received the Complaint by certified mail) to file your Answer to the Complaint for Divorce. Often when a new divorce case is filed, on the request of the filing party, or “plaintiff,” a judge may grant temporary, ex parte orders granting custody of the children to the plaintiff and requiring the other party to pay child support and receive parenting time with the children. The judge may also order a party to pay spousal support or to maintain the financial status quo. This type of order is called an ex parte order because the other party, or “defendant,” does not have advance notice of the request. The ex parte order will remain in effect unless the defendant (the spouse who did not file for divorce) files a written objection and hearing request within 14 days after being served with the Complaint and the court order(s). If a hearing is requested, the judge can change custody and support pending the final settlement or trial. Because you have only 14 days to object to the custody or support order, and only 21 days to file an answer, you should contact us as soon as possible after you are served. With respect to child custody, it is essential to act quickly because a temporary order may affect the burden of proof in a contested custody matter.
Once the case has been started and an answer filed, the process of “discovery” begins. This process allows each spouse to “discover” what property, income, or other information is in the possession of the other spouse. Michigan law provides for “liberal” discovery. This means that you and your spouse are required to turn over nearly every type of information about yourself (medical, emotional, financial) to the other’s attorney upon request.
Often issues may arise relating to custody, parenting time, support, temporary alimony, or other arrangements during the divorce case. If the parties cannot agree or settle their differences, then it becomes necessary to let the judge decide. This is done by filing a motion with the court and scheduling a hearing where both attorneys can state the positions of their clients. Each county has a different “motion day,” when such motions are heard; and while the hearing itself before the judge is usually very short, there are many motions scheduled on each motion day which may mean that you will wait while other cases are heard by the judge. At these hearings, only the attorneys are allowed to speak to the judge.
In Michigan, less than 2% of all divorce cases go to trial. But, if you are unable to reach a final settlement through negotiation or mediation, and if you and your spouse cannot agree on arbitration, your case will go to trial. By order of the Supreme Court of Michigan, our family court judges are under strict guidelines to bring cases to conclusion within a restricted time period of approximately 90 days to one year depending on whether or not there are children involved. Some judges do not like to hear divorce trials because they present difficult and highly emotional issues; some judges also recognize the advantages to a negotiated or mediated settlement. Because of this, the judge may order mediation prior to trial or attempt to pressure parties anxious to end the marriage into a settlement. Several scheduled trial dates may come and go without the trial taking place. These delays may give the parties an opportunity to reach a settlement.
If your case does go to trial, it is likely because of highly contested issues and contentious differences between the parties, quite often involving substantial marital assets and custody of the children. As your attorneys, we will spend considerable time preparing you and your witnesses for the trial, including any expert witnesses who are required to support your case. For instance, in custody cases, a forensic psychologist might be heard by the judge as to the parties’ respective custodial fitness and what he or she believes is in the child or children’s best interest after having met with the parties and the child or children prior to the trial. Furthermore, experts may be called as witnesses to assist in valuing assets such as businesses, real estate or other investments. As your attorneys ardently and passionately representing your interests we will prepare so as to present the best case possible on your behalf. The judge before whom we will appear will only have as much insight about you, your family and your case as we are able to provide through witnesses and other documentary evidence. The judge will decide all of the issues involved in your contested divorce case after listening to the testimony of the various witnesses, weighing the evidence, determining the facts and the equities (fairness), and applying the law as he or she sees fit.
Divorce litigation is highly emotionally charged. If your case has come to the point where we are going to trial, as a litigant you are likely filled with feelings of anger, fear and sadness. Litigants often testify in trial, saying things out of anger or fear that they cannot take back. Especially where there are children involved, a contentious divorce trial will cause far more harm and create far more animosity between two individuals who long after their day in court, no matter how the judge decides to divide their property, will always share their children. It is for these reasons that all involved are best served by doing everything possible to settle out of court prior to embarking on the unpleasant journey that is a divorce trial. However, if a reasonable settlement cannot be achieved due to an unreasonable position by one person or that person’s attorney, know that we take trials seriously and the option of a trial is viable and real.