Divorce is like any other lawsuit – there is a "Plaintiff," and a "Defendant." The Plaintiff files a "Complaint for Divorce," with the court and "serves" it on the Defendant. Service means that the Defendant actually received a copy of the Complaint for Divorce. This can be done one of three ways:
1. Any person over the age of 18 can physically hand the Complaint for Divorce to the Defendant, and sign a statement swearing that he/she actually handed the Complaint for Divorce to the Defendant. There is one exception. The Plaintiff cannot be the person to serve the Complaint for Divorce on the Defendant
2. You can send the Complaint for Divorce by U.S. Mail. However, it must be sent by Certified Mail, Restricted Delivery, Return Receipt Requested. It is important to send it Restricted Delivery so you can be sure that only the Defendant may sign of the letter when the mail person delivers it. If someone else signs the receipt of delivery, the Defendant has not been properly served.
3. You can hire a professional court officer to serve the Defendant the Complaint for Divorce. There is a cost for the court officer to serve the documents. The amount depends on how difficult the service is.
Once the Defendant has been properly served, he/she has 21 days to file an "Answer" to the Complaint for Divorce. That is, unless he/she was served by U.S. Mail which extends the time to 28 days. An "Answer" is a formal document that responds to the allegations contained in the Complaint for Divorce, and is filed with the court.
If the Defendant does not file an Answer with the court within the time allotted, the Plaintiff may file a "Default" with the court. A "Default" is a document that tells the court that the Defendant failed to Answer, or otherwise respond to the Complaint for Divorce. As long as the Defendant was properly served, or has any other legitimate reason to oppose the Default after it has been entered, the court may then enter a "Judgment of Divorce" without the Defendant's knowledge or consent. This is known as an "uncontested" divorce.
The Judgment of Divorce is the document the judge signs that legally, officially, and forever ends the marriage.
There are required waiting periods between the date the Complaint for Divorce, and the Date the judge may sign the Judgment of Divorce and officially end the marriage. Those periods depend on whether or not there are minor children born during the marriage. If there are minor children, the waiting period is six months. If there are no minor children, the waiting period is 60 days.
A Default (uncontested) divorce can be a cost effective way to get a divorce if the parties are in complete agreement on all issues involved in the divorce. It is the easiest on the nervous system, and on the wallet. Our office offers a flat rate to get parties divorced as long as it is uncontested. Whether with minor children, or without minor children.
If the Defendant does file an Answer to the Complaint for Divorce, both parties must do one of two things:
1. Negotiate a complete and final settlement/agreement of the property, debts, custody of children, child support and parenting time and all other issues of the marriage.
2. Take the matter to trial, and let the judge decide who get what and who pays what.
A divorce with minor children has more rules than a divorce without minor children. In a divorce without minor children, if the parties can agree on all issues, they can be divorced in 60 days.
A divorce with minor children has different rules. The issue of the children is important to Michigan Law and the Court. Again, the waiting period is six months. Also, the final Judgment of Divorce must provide for Child Custody, Child Support, and how much time each parent will be able to spend with the children. Many courts require that there be a temporary order that provides for child custody, support and parenting time during the six month waiting period. That is usually determined by the Friend of the Court either by agreement or court order.
This is a brief overview of how the divorce process works. For a more comprehensive explanation of what is involved in a divorce, you can review an introduction to divorce which we provide on this website.