DIVORCE

 
 

Next to death of a loved one, divorce is the most traumatic experiences in life.

For Mothers, Fathers, Husbands, Wives, and the Children born of the relationship, separation and divorce are or can be one of the most painful, difficult, depressing and demanding experiences in life.   Yet, as painful as it is, separation or divorce can be an opportunity for personal insights and personal growth.

The married couple’s hopes and dreams of happiness for themselves and their children are dashed upon the rocks of rejection and failure.  Usually the Husband and Wife have invested a great deal of time, love, loyalty and energy into the marriage only to have it shattered by the separation and breakdown of the marriage. 

Divorce is usually an economic disaster.  Instead of one intact home, there are now two homes that must be supported.

In my 47 years of practicing law, I have assisted and helped clients in coping with the trauma of separation and divorce.  The Client and Lawyer must answer and evaluate a series of questions:

    • Does the client really want a divorce?
    • Has the client considered the repercussions of a divorce action relating to his or her life, his or her spouse’s life and the impact upon the children?
    • What economic changes will the divorce bring to the individuals and family?
    • Is there any chance for reconciliation?
    • Can counseling or health care professionals become involved in an effort to save the marriage?  There must be a mutual interest in efforts to reconcile. 
    • If reconciliation cannot be accomplished, every effort should be made to resolve the domestic relations case through negotiations without proceeding to trial.  Alternative Dispute Resolution (ADR), such as mediation and arbitration is a useful tool to make fair and equitable settlements between the parties.  Although a trial is an adversarial proceeding, which can exacerbate ill will and anguish between the parties and their children, it is still with a competent Judge and competent opposing counsel the best procedure for securing truth and justice.

Settlement of a domestic relations case is the preferable way of resolving the parties’ disputes for these reasons:

  • First: The parties are able to control their own destiny rather than leaving the decision to a third party, a Judge in a black robe.

  • Second: The financial expenses and emotional toil associated with preparing and litigating a divorce are often significant and can be dramatically reduced if settlement occurs prior to trial.

  • Third: The length of time the parties must wait for the final resolution of their divorce can be dramatically reduced through prompt settlement, allowing the parents to move forward rather than dwell on the past.

  • Fourth: If minor children are involved, settlement demonstrates the parents’ desire to resolve issues in their children’s best interests and further sets a good example as the children observe and appreciate their parents resolving their dispute.

When a pending domestic relations case is settled, it is important to preserve the settlement by placing the terms and provisions of the settlement on the record or memorializing the provisions in writing, with the parties signing the document.

Under a Court Rule, MCR §2.507(G), an agreement between the parties or their attorneys regarding the proceedings in an action that is subsequently denied by either party is not binding unless it was made in open court or unless it is in writing, signed by the party against whom the agreement is offered or by that party’s attorney.

When preserving a settlement on the record, it is important to make sure that the client understands the terms of the settlement, before the provisions are placed on the record. The settlement should be read into the record in a clear and understandable manner, in the event a later dispute of the terms develops. Once the terms of the settlement have been presented into the record, each attorney should question his or her client as follows:

  • Have you heard the settlement placed on the record?

  • Do you understand the terms of the settlement?

  • Do you agree to be bound by the terms of the settlement?

  • Do you understand that you have the right to proceed to a trial before the court and that you could perhaps do better, worse, or stay the same?

  • Are you entering into this settlement freely and voluntarily?

  • Do you request the court to approve the terms of the settlement and enter a judgment or order containing the terms of the settlement?

Settlement agreements reached through negotiations between the parties are generally upheld by reviewing courts in the absence of fraud, duress, or mutual mistake.   Applekamp v Applekamp, 195 Mich App 656, 491 NW2d 644 (1992).   Judgments that are entered by consent based on settlements are more difficult to set aside than judgments resulting from trial litigated before a court. Id.

If the case cannot be settled through the parties, their lawyers, mediation or arbitration, the case must be tried before a Circuit Court Judge.  In trial whoever presents the most convincing testimony, exhibits and arguments in favor of his/her claims probably will prevail.   A lawyer is bound to represent his/her client competently, with legal knowledge, skill, thoroughness and preparation. 

The Michigan Rules of Professional Conduct (MRPC) 1.3 require a lawyer to act with reasonable diligence and promptness to pursue a matter zealously within the bounds of the law. 

The key to a successful result in whatever method is used whether it be negotiations, mediation, arbitration or trial, is Preparation, Preparation and Preparation!  Good things happen when the client working with the Lawyer are prepared.

A lawyer’s representation and proper preparation for trial begins with the client supplying the necessary information and facts so that an intelligent evaluation of the relevant facts and issues can be resolved in the domestic relations case.

Issues that may be raised and faced in a domestic relations case are:

Residency

  • Has the proper residency in Michigan been established? A judgment will not be granted unless the plaintiff or defendant has resided in Michigan for 180 days immediately preceding the filing of the complaint. The plaintiff or defendant must also have resided in the county where the complaint was filed for 10 days immediately preceding the filing of the complaint. MCL §552.9. The county residency requirement is jurisdictional and not merely a question of venue. Failure to establish residency in a particular Michigan county will result in a judgment’s being set aside. Stamadianos v Stamadianos, 425 Mich 1, 385 NW2d 604 (1986). MCL §552.9 provides an exception, in that a person may file a complaint for divorce in any county without meeting the 10-day residency requirement if it is set forth in the complaint that the defendant was born in, or is a citizen of, a country other than the United States and there is information that would allow the court to reasonably conclude that the parties’ minor children are at risk of being removed to another country.

Divorce or Separate Maintenance

  • Will a divorce be granted?

A Michigan Statute MCL §552.6(1) requires that there be 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.”  Michigan is now a “No-Fault” State as to grounds for divorce but fault is still relevant on the issues of alimony and property division.

  • For a separate maintenance judgment to be entered the same grounds are relevant and once a judgment is entered the only difference is that the parties are still Husband and Wife and no divorce judgment is entered.  If separate maintenance complaint is filed and the opposing party files a Complaint or Counter-complaint for Divorce, the Court has no discretion but to enter a Judgment of Divorce.
 
The information you obtain at this site is not, nor is it intended to be, legal advice.  You should consult an attorney for individual advice regarding your own situation.