Articles Posted in Family Law/Divorce FAQs

Clients often ask me if it is important for them to file for divorce first. There are a few advantages which I will discuss, but generally speaking, since Michigan is a No Fault divorce state, it doesn’t matter who files first. Either party can file, and even if the other spouse doesn’t want a divorce, the divorce will proceed once a complaint is filed. There are a number of statutory requirements that must be included in the complaint that I will discuss in other posts, but suffice it to say, Michigan actually mandates that parties do not allege fault in the complaint. So, the person filing first gets the ball rolling but doesn’t necessarily gain a tactical advantage.

The person filing first is called the plaintiff. The other party is the defendant. Unlike in criminal matters, the defendant is not an accused wrong-doer. . . these terms are used merely because divorce is an adversarial proceeding. Nevertheless, a divorce case does not need to be a battle and in fact, it is usually in everyone’s bests interests if the parties can resolve the issues as amicably as possible.

In cases where there is abuse (which comes in many forms. . . again, a topic for another post) or financial manipulation, the person filing first can ask the court to enter ex parte orders that preserve assets, maintain the status quo and even provide personal protection. You are in the best position to decide if these risks exist in your situation and you should discuss the potential benefits of filing first with your divorce attorney.

Some people decide not to file for divorce because it’s too expensive to go through the process. It is important to remember that the actual expense of filing for divorce is only part of the discussion a person should have with an attorney. I am always glad to discuss these sensitive financial issues in a free consultation.

Remember that knowledge is power. Many clients who are afraid to move forward because they’re afraid they can’t afford to live separately after divorce have no idea as to what their financial situation is. So, you should take steps to get a hold of financial statements, pay stubs, 401K statements, credit card bills, utility bills, cell phone bills, etc. If your spouse refuses to provide that information to you, then it is likely he/she is hiding something from you or he/she is trying to control you. Most people don’t realize that financial abuse is a recognized form of abuse that a counselor will address in therapy.

If you cannot gain access to your financial information, I have many methods of obtaining such information once the divorce is filed. I can send subpoenas, discovery requests, etc. and I have many other suggestions for clients that I will often discuss during free consultations. Nevertheless, do not allow your spouses refusal to provide you with information prevent you or delay you in filing for divorce if that is the decision you have made. In fact, the longer you let such financial infidelity go on, the worse things get.

When parents make the difficult decision to file for divorce, the impact on the children’s lives can be devastating if the parents cannot (or will not) co-parent. Co-parenting is part and parcel to the legal concept of joint legal custody. Michigan divorce law favors joint legal custody so that both parents are involved in making decisions that affect major aspects of a child’s life (i.e. health, education, religion). It is now rare in Michigan divorce law for one parent to have sole legal custody. As a result, the parents must cooperate, or co-parent in a way that shows the children that even though the parents are no longer married, they still love their children enough to continue working together to ensure the children lead happy and successful lives.

Too often one or both parents cannot look past the emotion of the divorce and the children get stuck in the middle as the parents argue over even the most mundane issues. However, it is very important for parents, even if they have to act, that they show they children mom and dad are making joint decisions regarding their children’s lives. Kids catch on quickly. . . if they feel they can play one parent against the other, they will do it. Or, the parents’ failure to get along can cause the child to feel like he/she was the cause of the divorce.

Parents must try to put their differences aside so that their children don’t get caught in the cross-fire. If you notice your child is acting differently, perhaps withdrawn or temperatmental, then you should work hard to try and be on the same page as your ex-spouse. Several courts have programs that provide education to parents (i.e. SMILE program) to show them the benefits of co-parenting and to also discuss the damage that can be caused to children when parents cannot get along following a divorce.

I receive calls all the time from people who want to know how much a “simple divorce” will cost. Some of those people reveal that they have purchased on line divorce kits or they went to the court house and began filling out the forms on their own. In today’s economy, people are always looking for ways to save money. If you have a short term marriage, have little or no joint property, you may feel that you can pursue a quick, inexpensive and simple divorce. My experience tells me that there are certainly situations where people can finalize a divorce on their own. However, if you have ANY doubts in your mind, you should consider hiring an attorney. As I have said in other blogs, it is hard to put a price tag on peace of mind.

The best example I have of a “simple divorce” gone bad is a recent client who hired me after her “simple divorce” was finalized a couple of years ago. Her husband was awarded the marital home but it was in both parties’ names. .. he stopped paying the mortgage but there was not any protective language in the divorce judgment. So, she hired me to take her ex-husband to court and fortunately, the judge ruled in my client’s favor so that we put several protective measures in place. . . some of the damage was already done so this client was a bit lucky. Nevertheless, her “simple divorce” ended up costing her a substantial amount of money in attorney’s fees plus damage to her credit, sleepless nights, etc. . . if only she had hired an attorney from the outset!

I must also say that I don’t believe any divorce with children can be classified as simple. That doesn’t mean all divorces with children are complicated. However, there are certain steps that must be followed (i.e. Friend of the Court referral, calculate child support, put appropriate custody and parenting time language in the judgment, etc.) even when the parties agree on most or all custody issues.

When I finalize a divorce judgment, I try to take the time to walk my client through the judgment of divorce to give him/her tips on how to stay out of court. When children are involved and the divorce was fairly contentious, there may be problems between the parents and the kids get caught in the cross-fire. Of course, it should go without saying that the kids should not be brought in the arguments between the divorced parents. Sadly, many parents lose sight of this basic rule of thumb and allow their kids to witness boorish, if not abuse behavior between the parents.

So, in order to avoid this stress and in an effort to foster an environment where the parties can co-parent, I give my client two words to follow in their post-divorce life: courteous and professional. That is, always speak to your ex-spouse politely and in a professional manner. Your ex-spouse may try to get on your nerves and/or try to bait you. . .don’t bite. Simply ignore the undesirable behavior and keep your communications brief. Now, this doesn’t mean that you should give your ex-spouse the cold shoulder or refuse to have social interaction with your ex-spouse. Use common sense. It’s certainly better if the two of you can get along; it helps the children adjust if they know their parents get along. In some cases, where the parties don’t get along, the kids will play one parent against the other in an effort to get his/her way.

Another effective strategy to bring peace to your post-divorce life when there are kids involved is to document all of your communications with your ex-spouse. I always recommend the use of e-mail. Texting works for money divorced parents but if you have an ex-spouse you cannot trust, then text messaging may not be the best mode of communication. Even if you receive a call from your ex, to the extent you believe necessary, follow up the call with an email. Some jurisdictions have family communication services where you send all of your messages to your ex in a monitored site where all communications are saved so there can be no manipulation of words as they are preserved! Of course, the better you get along as ex-spouses, the better it is for the kids and hopefully, you can communicate without needing to document every word you utter to each other.

Whether to file for a legal separation or divorce is a complicated decision that you need to discuss with an attorney. In either case, there has been a break down in the marriage. I recently had a client who filed for divorce but during the mediation process, we agreed to convert the case to an action for separate maintenance. The advantage to my client’s wife was that she was able to maintain her health insurance through my client’s former employer from which he was retired. Be sure to check with the employer, human resources or the health care company directly to ensure benefits will not be suspended in the event of legal separation.

Legal separation does result in a final division of marital assets but the parties are still married and therefore cannot re-marry. If you have gone through a legal separation, but you later decide you want to divorce, you can petition the court to convert your judgment of separate maintenance to a divorce judgment.

In addition to not being able to re-marry, one other potential pitfall of legal separation is cost. It is rare for people who are legally separated to reconcile though it does happen. So, if you’re in the majority, you may want to consider saving yourself some money (and aggravation) and simply file for divorce rather than separation because the likelihood of divorce is so substantial. Again, this is a personal choice and the client must decide which route to go.

Clients often ask me if it is important for them to file for divorce first. There are a few advantages which I will discuss, but generally speaking, since Michigan is a No Fault divorce state, it doesn’t matter who files first. Either party can file, and even if the other spouse doesn’t want a divorce, the divorce will proceed once a complaint is filed. There are a number of statutory requirements that must be included in the complaint that I will discuss in other posts, but suffice it to say, Michigan actually mandates that parties do not allege fault in the complaint. So, the person filing first gets the ball rolling but doesn’t necessarily gain a tactical advantage.

The person filing first is called the plaintiff. The other party is the defendant. Unlike in criminal matters, the defendant is not an accused wrong-doer. . . these terms are used merely because divorce is an adversarial proceeding. Nevertheless, a divorce case does not need to be a battle and in fact, it is usually in everyone’s bests interests if the parties can resolve the issues as amicably as possible.

In cases where there is abuse (which comes in many forms. . . again, a topic for another post) or financial manipulation, the person filing first can ask the court to enter ex parte orders that preserve assets, maintain the status quo and even provide personal protection. You are in the best position to decide if these risks exist in your situation and you should discuss the potential benefits of filing first with your divorce attorney.