Ep 7: What Happens in a Nasty Litigated Divorce?


In today’s episode, we’re going to give you an overview of a traditional divorce process that’s litigated in court. This is a divorce method that you may be considering so I want to give you an overview and explain how it works so that you can decide whether this is one of the methods that you’re interested in using to get divorced.

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What Happens in a Nasty Litigated Divorce?

In today’s episode, we’re going to give you an overview of a traditional divorce process that’s litigated in court. This is a divorce method that you may be considering so I want to give you an overview and explain how it works so that you can decide whether this is one of the methods that you’re interested in using to get divorced.

The first question that many people wonder about is which court is going to have jurisdiction over my divorce. The short answer is the county or commonwealth in which you live.

Each state is going to have specific residency requirements for example, in Michigan, you have to be a Michigan resident for 180 days and a resident of the county in which you live for at least 10 days in order to file for divorce in that county. Each state may differ in terms of the number of days that are required, but you can expect most states to have similar residency requirements. Once you get divorced, if you have minor children, you’re going to need the court’s permission to move more than 100 miles from the place that you lived at the time the divorce was filed. This is known in Michigan as the hundred-mile rule. Many other states have similar restrictions or similar radiuses within which you cannot move if you have minor children after your divorce is entered. And the reason is because the court wants to ensure that both parents have equal access to the children so that they can both have a meaningful relationship with them. Many courts require that after your judgment of divorce is entered, you cannot travel with the kids internationally unless you have the consent of the other spouse. There is an international treaty called the Hague Convention and if a country is a party to the Hague Convention, that means that it’s a country that is internationally reciprocal with the laws of another country. For example, Mexico, if you want to take the kids on vacation to Mexico, you can go there without a problem because Mexico is a party to the Hague Convention, and should your spouse decide not to return with the kids from Mexico, there would be reciprocity between the US laws and the Mexico laws in terms of being able to get your kids back. There are other countries however, that are not a party to the Hague Convention and if that’s the case, you will not be able to travel to those countries without the express written consent of your spouse. If you should, for example, go on a safari to Rwanda…because Rwanda is not a member of the Hague Convention, there’s no reciprocity with the laws. So you could, I guess, theoretically take off to that country or another country that’s not a Hague Convention country and not return. So this is just something to be aware of as you’re embarking on your divorce, and some things to keep in mind if you do have minor children.

The next thing that many clients are wondering is how does a traditional divorce process get started? Basically, once a spouse files a complaint for divorce, then that spouse is responsible to serve those divorce papers on their spouse.

There are a number of different ways to go about doing this. Many times you will hire a process server who will serve those papers to your spouse either at home or at their place of business. Then once your spouse is served with a copy of the pleading, that starts the divorce process. Your spouse is going to have a certain number of days within which to respond. For example, in Michigan, you have 21 days to respond with what we call an answer to the complaint. Some jurisdictions may call it something different but basically within a certain number of days of being served with your complaint for divorce, you’re going to want to file some type of a responsive pleading. So that’s something really important to talk to your attorney about because you don’t want to be what’s called defaulted. So if you receive divorce papers, and you get served with those divorce papers, and you don’t do anything about it, then the court can enter what’s called a default judgment against you and that basically means that the spouse who filed is going to get whatever relief it is that they’ve asked the court for because you’ve decided to ignore or not to respond to the complaint.

Now, many people wonder how are we going to pay our bills during this divorce process? In a traditional divorce proceeding, many courts will enter or will require that an order be entered called a status quo order. Basically that means that the court enters an order that requires the parties to maintain the financial status quo that they’ve been using throughout their marriage. The person who files for Divorce can sometimes request this and many times the court will actually enter it before the other party even has an opportunity to respond. And the reason is it prevents one party or the other from selling off assets, from emptying bank accounts, from trying to move money around, or sell property or dispose of property. Basically, the order requires the parties to essentially put a freeze on any of their major financial decisions until their assets and liabilities can be divided as part of the final judgment. The status quo order is one way to ensure that throughout the divorce process, you’re able to maintain the financial status quo and continue to pay your bills as you have throughout your married life. In some states, there is an agency of the court that is dedicated to issues involving the children and in Michigan, we call that the front of the court. Other states may call it something differently, but essentially it’s an agency that helps parents who are getting divorced and after the parents are divorced with issues regarding the children. This agency could help with issues such as child support, custody, issues involving parenting time, or parental responsibility rules, or any other issues involving the minor children. Lots of times this particular agency, this front of the court, will help judges make decisions about your case. Sometimes you’ll be required in some jurisdictions to go meet with this agency or to meet with what’s called an attorney referee who helps the judge make decisions for your case. Many times you’re required to go through some type of a parenting class. In our jurisdiction, it’s a movie that you have to watch. It’s called the Smile Program. It stands for making it liveable for everyone and it’s a video about the impact of divorce on your kids and how hard it can be for your kids, and how important it is to really constructively coparent with them so that the divorce process is less harmful to your children. Other jurisdictions have a similar agency or some other type of similar requirement.

In Michigan, there’s a six month waiting period and in other states it may be longer than that – the court will impose a six month waiting period from after the time that you file for divorce before it will enter your divorce judgment if there are minor children involved. So, the policy behind this is that the court and the state wants to see you keep your marriage intact if you have minor children. The six month waiting period is designed at least by some policymakers thinking to keep the marriage intact. As a practical matter, it often takes longer than six months to get divorced, so it’s not much of a waiting period. If for some reason it doesn’t take you that long to get divorced throughout the traditional divorce process, you can have your judgment entered in less than six months if you ask the court for a waiver of that statutory six month waiting period.

The next major step in the process of a traditional litigated divorce is the discovery phase. Discovery is the phase of the case where you find out as much as you can about your assets, liabilities, potential inheritances, issues involving separate property that your spouse may be claiming, as well as issues involving property that you brought to the marriage that you want to keep separate from your spouse. Another thing that is often asked are questions of the other party: what does the other party believe is in the best interest of the children? What type of parenting time schedule is the other party looking for? Basically, both sides engage in a number of different questions during this period, and there are formal discovery devices that can be used, such as interrogatory requests to admit depositions. These are all different tools that are governed by the court rules that allow for you to ask questions of your spouse, and all of those questions have to be answered under oath. So you’re going to be going through a process where you’re answering questions for your spouse about your assets, your finances, your income and other issues. Now, one thing to mention in this space is that sometimes when the parties are getting divorced, they may try to be really clever and put some type of tracking device on their spouses vehicle, or they may try to put a tracking device on their spouses phone, and monitor their spouses movements in some way.
It’s really important for you to talk to your lawyer about this before you undertake doing this.

You want to know as much as you can about your spouse, what is my spouse doing? Where are they going? Where have they been? Are they cheating on me? But whether or not you can actually use the information that you obtain from doing that type of tracking is going to be very state-specific…

and you may go to a lot of trouble to track their movements, but if you haven’t done it in a way that’s legal in your jurisdiction, then the information that you get throughout that process is probably not going to be admissible in court. So that’s something that you want to do carefully and in consultation only with your lawyer. Maybe you’re in a situation where you’re the one who’s being tracked, there are some really practical ways to go and have your vehicle checked for whether or not there’s a GPS tracking device on it. This is going to be a topic that we cover in a future episode about more about these GPS devices, how they work, what to look for, how to be aware if you’ve got one on your vehicle, and how to get rid of it. That is the type of thing that happens or can happen during the discovery process.

Once all the facts are known, the next phase of the process is the settlement conference. Once the discovery process is concluded, there’s usually some type of a settlement conference either with the judge or a court-ordered mediation. If it’s a court-ordered mediation, sometimes it takes place with a private attorney who serves as your mediator. So what is mediation? Mediation is an alternative dispute resolution process that really helps the parties reach an agreement about the issues in their case. If you and your spouse can agree on how your assets and liabilities should be divided, how the children should go back and forth, who should have custody of the children, etc… If you’ve worked all of those issues out with your spouse, then you can enter into an agreement with your spouse with respect to those issues. The judge is not going to make those decisions. The judge is going to enter a consent judgment of divorce. So long as you meet the statutory requirements, and the court believes it’s fair, the court is going to enter your agreement as your consent judgment. Now, if on the other hand, you’re not able to agree at mediation, then you’re going to end up having a trial.

A mediation typically takes place with an attorney who’s trained in domestic relations mediation, and he or she will be the person who guides you through a negotiation. They will meet with both parties and they will also meet with your counsel to see whether you have common ground with your spouse and whether or not you’re able to figure out a way to resolve the issues without having to have a contested hearing in court. This is where all that information comes in that you found out during the discovery process because it’s very likely that during the mediation process, your attorney is going to create what’s called a mediation statement. It’s going to be your position of the case, how you think things should be divided, what you think is fair, what you think is equitable, and why. So all of the information that you gained during the discovery process is really going to be relevant to the settlement conference because the thing that you really want to make sure you do during the settlement conference or during mediation is to make sure that all of your marital assets and liabilities are actually divided. If you don’t divide everything, then it can lead to a lot of issues later.

Another thing about mediation is that it really can save you quite a bit of money.

If you choose to settle in mediation, you design a solution that works best for your family rather than having to go back to court and having to go through the emotional toll and expensive litigation. And many times people don’t want to leave these very private decisions up to the judge that is assigned to their case – that judge’s understanding of your life is very minimal, and sometimes it’s not the best idea to put the decision into the hands of somebody who doesn’t really know what your day-to-day life is like. So the mediation process really empowers you and your spouse to come up with a plan that can work for your family going forward. So if you get through mediation, and you’ve agreed, you have to then go before the court. If the court finds that certain statutory factors are met, that your attorney will take you through, then it’s very likely that the court will find your consent judgment to be equitable and the court will enter it and then you’ll be divorced. So in a generic sense, that’s the most streamlined way for it to happen.

If you’re unable to settle at mediation and your case is going to proceed to trial, then there’s a number of other steps in the process.

For example, you are going to exchange witness lists of the people that you would want your attorney to call. The other side is going to give you their witness list. You’re going to have exhibit lists, you’re going to have trial briefs, you’re going to have all different kinds of things that your attorney is going to have to file with the court on your behalf, and then your case will essentially be set for trial. There’ll be a contested hearing where you testify, your spouse testifies, you’ll be subject to cross examination, you can each call witnesses who are also required to testify, answer questions, answer cross examination questions, and then all of those issues that you tried to settle during mediation are going to be decided by the judge that hears your case. So having a full blown trial is a much more expensive way to go. It’s just really something to keep in mind when you’re going through the mediation process. You might not get 100% of everything that you want, but you would at least be saving the cost and expense of moving forward with a trial. So once all of the proofs are closed in your case you have an evidentiary hearing. Then the judge will either decide right then and say, Okay, here’s how we’re going to split it up, or the court may do something else, which is called take the case under advisement, and then issue a written opinion. That means that if you take the route of an evidentiary hearing and trial, it’s going to take a lot longer to get divorced than it is if you’re able to resolve your differences at mediation.

Another question that I get a lot is what happens after our judgment is entered? What if we still can’t get along or there’s an issue about the interpretation of our judgment? What happens then? Is the court done with us, or can we still go back to court?

The short answer is that with respect to your property provisions of your settlement, all of the real property or bank accounts, retirement accounts, those types of issues are really final, unless there’s been a fraud on the court. So unless one party has hidden an asset from the other over the course of the discovery process (which we’ll cover that in another episode), unless there’s been a fraud on the court, the property side of your settlement is going to be final. But the provisions with respect to the minor children including child support, custody, parenting time, those do remain modifiable in most jurisdictions until your child or children reaches the age of 18. The reason is because as kids grow, circumstances change. Parents may change jobs, parents may move, parents may get married, kids may grow and change in a way that causes a situation with respect to your parenting time scheduled to need to change over time. So while the property division provisions of your settlement are going to be final, the issues regarding your kids will be modifiable, even after your judgment is entered.

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