There are 5 issues in a divorce case, they are:
1. The divorce itself
2. Minor Children, if any
3. Property Division
4. Support: Child and Spousal
5. Attorney fees and others
When you being your divorce and meet with your attorney you first have to realistic expectations. Ask your attorney what is realistic and what is not. A good attorney should not tell you that you will receive everything you want.
Commence a Case – starting
You will be in the family division of the circuit court in the county where you live if you file first.
You will file a Complaint for Divorce which includes all of the above numbers.
If you wish to file for a separation you will have all the issues above except for #1.
In your complaint for divorce you can petition the court for ex-parte relief for such items as temporary restraining with out notice to the other side.
3 phases of the divorce:
1. Exparte –Wild phase: This is the time when the first party files until the second party hires an attorney.
2. Temporary Phase- Other side retains an attorney or the parties go in front of a judge.
3. Permanent Phase- the rest of your client’s life.
Your attorney will review with you several important items:
Does the client need to do anything right away. Is there a danger that the client needs to file or be retained?
Temporary arraignments and parties are being supported and bills are being paid. Your attorney will be gathering information for your case. Look at inerium support and custody. Look into settlement information.
There are 5 issues in the complaint.
First is the divorce itself. There are 3 parts to the divorce: the law; proof at trial and relief requested.
Does the court have subject matter jurisdiction? One of the parties must be a “resident” of the state of Michigan for the statutory period of 6 months/180 days. This varies between states. Here you look at the intent of the party. Michigan law 552.91(1)a: states that residence and domicile are the same.
To file first you must be a resident for 10 days in the county where you are going to file. Michigan requires only one of the parties meet the 180 day requirement.
Allege the lawful marriage and wife’s latest last name.
MCL 552.6 There must be the allegation in the complaint that there is a breakdown in the 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 a no fault state where other states can be a fault based state which means one party committed adultery, or cruelty or desertion or abandonment. Fault in Michigan is for custody, property settlement, support and attorney fees.
Name of children and ages if any.
State whether or not the wife is pregnant.
State if the courts have jurisdiction over the children
States if there are assets to divide.
Support for client and children
Who can pay for the attorney fees.
Ex parte relief
This part tells the court the facts.
Status Quo Order
Who has been paying for what
End of the Complaint
Tell the court what you want, plead only basics on the 5 issues:
Alimony and child support
Attorney fees and who pays
Next file the Summons and Complaint form
After you have it time stamped at the court, take the ex-parte orders to the judge’s clerk to have them signed.
To service the spouse: Client can give it to spouse or use a process server. It just depends on how you feel the spouse will handle the divorce and what you want to accomplish.
The defendant and his or her attorney must file an answer. Either admit or deny each paragraph by number in the complaint. Tell the court what defendant wants or/and counter claim for divorce. This stops the Plaintiff from stopping the proceedings. Also file any objections to ex parte orders.
Going to court to get something from the judge. You must tell in the motion and precipee in Oakland county what you want and why. There is at least one week’s notice minimum up to 13 days, depending on what day of the week is motion day and when you file.
The caption will be “Motion for ____________”
Attach a short brief is ok, even one sentence. Attach a proposed order for the judge to sign immediately.
HOW TO ARGUE A MOTION
If you file a motion, you can lose and have a judge hate you.
1. The attorney should be there first, check in and sit the client.
2. When your case is called the attorney will go to the podium and state “Good morning your honor, may it please the court, my name is ____________ on behalf of ___________” if have retained an attorney.
3. keep eye contact with the judge. Identify the motion: “Judge Im here today ……..” Tell the judge what you want. State the least amount of law and facts, mostly speak to the judge and TELL THE TRUTH.
The other side will then argue their side.
You then decide if you want to rebut.
Tell the judge thank you.
If you think the judge got the issue or relief is not what you want or just got it wrong, tell the judge you want clarification.
It is good to have the client there but it also depends on the type of motion and cost to client.
This is what we are trying to find out about the other party. There are several tools available:
Request to admit
1. Statement of net worth for each party on a certain date both assets and liabilities.
2. Parties Income and cash flow
How much money they need to support themselves.
3. Expense analysis – life style analysis
Money to get by to pay mortgage, car, food, kids activities etc
4. Marital history: what went on.
How to gather all this info:
Use interrogatories to the other side.
Find out what info you need to develop the questions. Have a long and short list of questions.
Get general information first then go to specific if needed:
Assets and value of each
This is an effective way to gather information. Decide first what you want to accomplish. Best used on a hostile witness. Judge does not see transcript. Make outline and listen to the answer and ask why.
Tell your client to tell the truth and to think before they answer and know what you’re going to end up with. You should not guess at a question. It is ok to say “I don’t know at this time”.
A deposition is like being a goalie, keep the puck out of the net. You can’t score points at your deposition.
You can do threats of who you are going to depose like girlfriend.
Use a subpoena to depose 3rd parties.
Request to admit
These are 1 sentence statements to admit/deny/ or take the 5th.
The court can draw inferences on taking the 5th.
If you have questions about filing for divorce contact David Lutz at (248) 624-5500