Introduction to Divorce with Minor Children

What Do I Need to Get a Divorce in Michigan?

You or Your Spouse Must Be a Michigan Resident

Either you or your spouse must have lived in Michigan for at least the last 180 days before filing. You must file your divorce in circuit court in the county where either you or your spouse has lived for at least ten days before filing. Most people file in the county where they live, but you do not have to. You can file where your spouse lives.

You do not have to be separated or living apart from your spouse to file for divorce.

To get a divorce in Michigan, only one spouse has to live in Michigan. However, if one of you has never lived in Michigan, the court may only have limited jurisdiction in your case. Limited jurisdiction means the court can divorce you, but might not be able to do other things, such as:

• Make custody and parenting time decisions
• Order child support
• Divide your property

If you think Michigan has limited jurisdiction in your case, consider talking to a lawyer. Use the Guide to Legal Help to look for a lawyer or legal services in your area.

If you have a prior divorce case with your current spouse that might be active, you should talk to a lawyer. Before you can file a new divorce case, all prior divorce cases must be dismissed.

You Don't Have to “Prove” Anything to Get a Divorce

Michigan has “no-fault” divorce. No-fault means that you don’t have to prove cheating, cruelty, or anything else to get a divorce. Your spouse doesn't have to agree to give you a divorce. You can get a divorce even if you are the person who did something that made your marriage end. 

To get a divorce in Michigan, at least one spouse must testify that “there has been 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.” This means there has been a serious, permanent, marital breakdown. It means that it is very unlikely that you and your spouse can work things out.

Although you don’t have to prove fault to get a divorce, a spouse’s behavior during the marriage can impact the outcomes of your divorce. The judge can consider fault in making decisions about spousal support (alimony) and dividing property.

Place of Marriage, Citizenship, and Common Law Marriage

If you were married in another state or country, you can still get divorced in Michigan as long as you meet the residency requirements above. Neither spouse has to be a U.S. citizen to get a divorce in Michigan. But if your right to live in the United States depends on your marriage, divorce may affect that right. If you are in this situation, consider talking to a lawyer. If you need a lawyer and have low income, you may qualify for free legal help. Use the Guide to Legal Help to find a lawyer or legal services in your area.

A Michigan court can grant you a divorce if you have a valid common law marriage. A common law marriage is an agreement between a man and woman to live together as husband and wife without being formally married. Only a few states recognize common law marriage today. Michigan has not allowed common law marriage since 1957. Michigan only recognizes common law marriages that:

• Were entered into in Michigan before 1957, or
• Were entered into in another state that recognizes common law marriage

If you think you have a common law marriage and want a divorce, consider talking to a lawyer. If you have low income, you may qualify for free legal services. Whether you have low income or not, you can use the Guide to Legal Help to find lawyers in your area.

What Other Options Do I Have?

Separate Maintenance

Separate maintenance is sometimes called legal separation. It is similar to divorce, but you are still married at the end of the case. There will be decisions in your case about custody, parenting time, and child support. Marital property and debt will be divided, and spousal support may be ordered. If you file a complaint for separate maintenance and your spouse files a counterclaim for divorce, the judge must consider the case a divorce.

You might file a separate maintenance case because you have a religious objection to divorce or want to stay married for other reasons.

Annulment

An annulment is a court decision that a marriage did not happen. You can only get an annulment in certain situations. The legal reasons for annulment include bigamy, mental incompetence, age, or relationship of the parties. You can also get an annulment if your spouse used force or fraud to get your agreement to marry.

To learn more, read Alternatives to Divorce: Separate Maintenance and Annulment.

What Will Get Decided in My Divorce?

End of Marriage

When you get a divorce, the judge will end your marriage. Because of Michigan’s no-fault law, you will not have to give a reason for the breakdown of the marriage.

Property and Debt Division

Property or debt that you get during your marriage is usually considered marital property. Marital property may include real estate, pensions, insurance, retirement accounts, and investment accounts, among other kinds of property. If you and your spouse don’t agree on how to divide your property and debt, the judge will decide. Michigan law says marital property and debt must be divided fairly. In most cases, this means dividing them evenly. 

 To decide what is fair, the judge will consider these factors:

• The length of your marriage

• Your contribution to the marital estate

• Your age

• Your health

• Your standard of living during the marriage

• Your needs and your current living situation

• Your ability to earn money

• Your conduct during the marriage (fault)

Separate property is property owned by one spouse before the marriage, or property inherited by one spouse during the marriage and kept separate from the couple's other assets. The owner of separate property usually keeps it.

For more information about property issues, read the articles Divorce Basics: Dividing Your Property and Debt and Real Estate and Divorce.

Spousal Support (Alimony)

If you or your spouse asks for spousal support and you can't reach an agreement, the judge will also decide this issue. Spousal support is not always awarded. When it is awarded, it can be temporary or permanent. When deciding whether to award spousal support, the judge will consider these factors:

• The length of your marriage (spousal support is more likely in a long marriage)
• Your conduct during the marriage
• Your ability to work
• The source and amount of property you are getting in the divorce
• Your age
• Ability to pay spousal support
• Your needs and your current living situation
• Your health
• Your standard of living during the marriage
• Whether you are responsible to pay for the support of others
• Contributions to the marital estate
• If you live with someone else, the effect this has on your financial status
• Fairness

For more information, read Spousal Support (Alimony) in a Nutshell.

Minor Children

In your divorce, there will be decisions about the children who have both you and your spouse as legal parents.

Children who are included in your divorce are:

• Minor children born or conceived during your marriage
• Legally adopted children 
• Minor children you and your spouse had together who were born before your marriage, as long as the husband's paternity was established by Affidavit of Parentage or court order

 The following issues about these children will be decided in your divorce:

• Custody
• Parenting time
• Child support
• Which parent will claim the child tax credit

Custody

There are two types of child custody: legal custody and physical custody. Legal custody means the right to make important decisions about your children such as school, religious, and medical decisions. Physical custody refers to whom your children live with.

Both legal custody and physical custody can be sole or joint. Sole custody means only one parent has that type of custody. Joint custody means the parents share that type of custody.

If parents have joint legal custody, they both have the right to weigh in on important decisions about their children. If parents are not able to talk and make decisions together, the judge will probably award one parent sole legal custody.

If parents have joint physical custody, the children live with each parent at different times. If one parent has sole physical custody, the other parent will normally still have parenting time.

The judge makes custody decisions (legal and physical) based on “the best interests of the child.” This means the judge must consider the 12 best interest factors when deciding custody. To learn more, read The “Best Interests of the Child” Factors and Custody and Parenting Time.

Parenting Time

Once physical custody is determined—joint or sole—parenting time must be established. Parenting time is the term used in Michigan for the time a child spends with each parent when parents do not live in the same home. When one party is awarded sole physical custody, typically that parent has a substantial amount of parenting time or time with the child, and the other parent has less. When parties have joint physical custody, although that doesn’t have to mean equal parenting time, it is often equal or close to equal.

Parenting time can be granted for specific dates and times, or it can be "reasonable parenting time." With reasonable parenting time, parents work out parenting time as they go, without a specific schedule. If there is a conflict about parenting time, you would need to come back to court and file a motion.

If you have specific parenting time, that means there is a specific schedule. In many cases, parents are able to agree to a specific parenting time schedule without the court's involvement, or with the help of the Friend of the Court. If the judge approves the agreed-upon schedule, it becomes part of the court order. The Parenting Time Guideline created by the Friend of the Court Bureau is a helpful resource for parents who need to put together a parenting time schedule. The Guideline includes sample schedules you can use as a starting place to create your family's schedule. It also has information about the developmental needs of children at different ages in connection to parenting time. The Guideline addresses specific topics such as long distance parenting time, parenting time with a parent who is in prison, and how to address domestic violence situations.

If the parents can't agree, a judge will make parenting time decisions based on the best interests of the child factors. A child has a right to parenting time with a parent unless a party shows by clear and convincing evidence that parenting time would endanger the child’s physical, mental, or emotional health. In some cases, the judge may order parenting time to be supervised by a third party.

To learn more, read Custody and Parenting Time.

Child Support

Child support is a parent’s court-ordered payment to help with the costs of raising a child. The amount of child support is calculated using the Michigan Child Support Formula. It takes into account the following factors:

• The parents’ incomes
• The number of nights per year ("overnights") the child spends with each parent 
• The number of children supported
• Health care costs
• Child care costs
• Other factors

A judge must order support according to the Formula unless the result would be unfair or inappropriate. Even if you and the other parent agree to a deviation (a support amount different from the Formula calculation), you still have to convince the judge that the Formula amount would be unfair or inappropriate. If you are asking for a deviation, you must fill out an extra form called the Uniform Child Support Order Deviation Addendum. Bring the form to your court hearing along with the completed Uniform Child Support Order.

The Michigan Child Support Formula Manual lists 20 reasons (called deviation factors) that the Formula amount could be unfair or inappropriate. You can find these in Section 1.04(E) of the Manual. If you want to ask the court for a deviation from the Formula and any of these factors apply to your situation, bring them up at your hearing and refer to them in your Deviation Addendum. You may want a lawyer to help you with this. It can be hard to prove that there should be a deviation from the Formula.

You can use the MiChildSupport Calculator to find out what the Formula calculation might be in your case.

To learn more, read Child Support in a Nutshell.

Child Tax Credit

To learn about the Child Tax Credit (CTC) and Additional Child Tax Credit (ACTC), read Am I Eligible for the Child Tax Credit?

Friend of the Court

The Friend of the Court (FOC) helps the judge with custody, parenting time, and child support. In some counties, you and your spouse will meet with an FOC evaluator or caseworker while your divorce is pending. The worker may interview you, your spouse, and other people who may have information about your case. The worker will also ask you for information about your income in order to calculate child support.

The Friend of the Court may try to help you and your spouse agree on custody and parenting time. If you can't reach an agreement, the FOC may make a recommendation to the judge. The recommendation is not a court order, but can become a court order if the judge signs it. Before this happens, you will have a chance to object to the recommendation. To learn more, read Friend of the Court Overview.

What Is the Divorce Process Like?

Starting the Divorce

If you file for divorce, you are the Plaintiff and your spouse is the Defendant. A divorce case begins when the Plaintiff files a summons, a complaint, and other required papers with the court. You can prepare the forms you need with the Do-It-Yourself Divorce tool. Then follow the Checklist instructions in the I Need a Divorce and I Have Children toolkit. The instructions tell you what you need to file to begin the case, how to file, and what to do afterwards to keep your case moving forward. Some of the next steps are listed below, but go to the Checklist to read the full set of instructions.

After you file your forms, you must have copies served (sent to) your spouse. Service is usually done by having another person give the papers to your spouse in person or send the papers to your spouse by registered or certified mail. To learn more, read How to Serve Divorce Papers.

If Your Spouse Files an Answer

If your spouse wants to participate in the divorce case, they must file an Answer with the court and serve you with a copy on time. Their deadline is 21 days after receiving your Summons and Complaint for Divorce, if they were served with those papers in person. If they were served by mail or outside the state of Michigan, they have 28 days to file and serve an Answer.

The Answer is a document that responds to each paragraph of your Complaint for Divorce. In the Answer, your spouse should explain which parts of your complaint they agree with and which parts they disagree with. Your spouse can prepare and download an Answer form using the Do-It-Yourself Answer and Counterclaim for Divorce. They can find a checklist of step-by-step instructions for filing the Answer in the toolkit My Spouse Filed for Divorce, and We Have Minor Children.

If your spouse files an Answer and you don’t agree on all the major issues in your divorce, you may want to consider talking to a lawyer. If you have low income, you may qualify for free legal services. Whether you have low income or not, you can use the Guide to Legal Help to find lawyers in your area.

If Your Spouse Does Not File an Answer

If your spouse does not file an Answer on time (read the section above to learn about the deadline), then you must file a form called a Default Request and Entry and send your spouse a copy after the clerk signs it. The Default Request and Entry is one of the forms produced by the Do-It-Yourself Divorce.

If your spouse does not file and serve an Answer on time and you do not file a Default Request and Entry, then the court will dismiss your divorce case. You must file the Default Request and Entry form to keep your divorce case moving forward.

After you file the Default Request and Entry form and the clerk signs it, your spouse is "defaulted." This means they will not be able to participate in the divorce case unless they ask the judge to set aside the default, and the judge grants their request. 

If your spouse is defaulted and they do not file a motion to set aside the default, you will be able to ask the judge to enter a judgment of divorce with the terms that you want, without your spouse's input. This does not mean the judge will automatically approve your proposed judgment. The terms of your divorce must still be reasonable and must follow the law. For example, the property division must be fair and the custody arrangements must be in the children’s best interests.

Waiting Period

If you and your spouse have children together, there is a six-month waiting period before your divorce can be finished. The waiting period begins when you file your divorce, even if you and your spouse were separated before that. If you and your spouse don't agree on everything, your divorce can take longer than six months.

The judge can shorten the waiting period if you show that waiting the full 180 days to finish your divorce would cause an unusual hardship to you or your children. The judge may also shorten the waiting period for other compelling reasons. The judge cannot make the total waiting period less than 60 days.

If you want to ask the judge to shorten the waiting period, you must file a motion. Complete the following blank forms:

• Notice of Hearing and Motion
• Order

Title your motion “Motion to Waive the Statutory Waiting Period.” Explain in the body of the motion why your situation involves unusual hardship or another urgent reason for finalizing the divorce before the end of the full waiting period. File your forms at the court clerk's office, and ask the clerk for a hearing date. You must mail a copy of everything you file to your spouse at least nine days before the date of your hearing. Fill out the certificate of mailing portion on a copy of your motion and file it with the court to show that you have served your spouse with the motion. Fill out the top part of the order and bring it with you to the hearing. If you need help doing this, use the Guide to Legal Help.

Mediation

You may be referred to mediation during the waiting period to help you and your spouse reach an agreement about the contested issues in your case (for example: property and debt division, child custody, etc.). A mediator is a neutral person who helps you and the other party try to work out an agreement. You could be referred to mediation if you agree to it or if the judge orders it. There may be a fee. A mediator may be a Friend of the Court mediator or a private mediator. To learn more, read Mediation and Other Forms of Settlement and Friend of the Court Overview.

Some cases are not appropriate for mediation. Your case might be excused from mediation for any of the following reasons:

• You or the other party have a personal protection order against the other
• Your children have been abused or neglected
• There has been domestic violence in your relationship
• You or the other party is unable to negotiate for themselves at the mediation
• There is reason to believe that the health or safety of one or both of you will be put at risk by mediation

Arbitration

You and your spouse may agree to go to arbitration if there are issues in your case you don't agree on. Arbitration is a voluntary process. This means both parties have to agree to go to arbitration, and they must agree on what issue(s) the arbitrator will decide. The parties pay the arbitrator a fee to hear and decide their case.

Arbitration is different from mediation because the arbitrator’s decisions are binding in the same way that a judge's decisions are binding. The arbitrator is a neutral third party who is trained in making these decisions. Their decisions become part of the final judgment in a court case. 

Dismissal

While your divorce is pending, you and your spouse may decide you don’t want to get divorced. If you filed a complaint for divorce and your spouse has not filed an Answer or motion in the case, you can file a Dismissal form without your spouse’s signature. If your spouse has already filed an Answer or motion in the case, you can only file a Dismissal if you and your spouse both sign it.

You can use the Do-It-Yourself Divorce Dismissal tool to prepare the form you need.

Finalizing the Divorce

If you use the Do-It-Yourself Divorce tool, you will have the forms to take you through your entire divorce. Your divorce might be resolved in one of these ways:

• By default judgment, if your spouse does not file an Answer or participate in the case
• By negotiated judgment, where you and your spouse decide the terms together
• By mediated agreement, where you and your spouse meet with a mediator and decide the terms
• By trial, where the judge makes a decision because you and your spouse can’t reach an agreement

Judgment of Divorce

After there is a default, an agreement, or a trial, you can submit a proposed Judgment of Divorce for the judge to sign. The judgment will end your marriage and state what you and your ex-spouse must do regarding child custody, parenting time, child support, spousal support (alimony), and property and debt division.

For more information about a Michigan divorce with children, go to the I Need a Divorce and I Have Children toolkit.

What If I Am Pregnant or My Spouse Is Pregnant?

If you or your spouse is pregnant during the divorce, the judge may require you to wait to enter the Judgment of Divorce (the final order in your case) until after the birth. A judge might do this to make sure the custody, parenting time, and child support provisions in the Judgment of Divorce are complete. Or the judge may sign the Judgment of Divorce but require you to return to court after the birth to add custody, parenting time, and child support provisions to the Judgment.

In an opposite-sex marriage, if a woman is pregnant and her husband is not the father, this adds another legal issue to resolve. Under Michigan law, a husband is presumed to be the legal father of any child born or conceived during the marriage. To ask a judge to revoke the husband's legal paternity, either the mother, the husband, or the biological father can file a Motion or Complaint to Determine Child Born Out of Wedlock. Otherwise, the husband will remain the child's legal father, and the biological father will not have any parental rights or responsibilities.

You can use the Do-It-Yourself Revoke Paternity Established by Marriage tool to prepare the forms you need to ask the judge to revoke paternity in this situation. However, you must wait until the child is born to file the forms.

What If There Is a Paternity Issue?

If a child is born or conceived during a marriage, and the mother's husband is not the father, this adds another legal issue to resolve. Under Michigan law, a husband is presumed to be the legal father of any child born or conceived during the marriage. To ask a judge to revoke the husband's legal paternity, either the mother, the husband, or the biological father must file a Motion or Complaint to Determine Child Born Out of Wedlock. This can be filed as a motion in a divorce case after the divorce is filed. If no one files to revoke paternity, the husband will remain the child's legal father, and the biological father will not have any parental rights or responsibilities.

You can use the Do-It-Yourself Revoke Paternity Established by Marriage tool to prepare the forms you need to ask the judge to revoke paternity in this situation.

If the wife is currently pregnant and her husband is not the father, either spouse or the biological father can file to revoke paternity after the child is born, but not before.

What If There Has Been Domestic Violence?

Domestic violence can take many forms, including physical assault, sexual assault, emotional abuse, isolation, control of money, threats, stalking, and intimidation. Abusers use these behaviors to try to gain and keep power and control over another person. Domestic violence is serious and can affect many issues in your divorce, such as custody, parenting time and property division.

Domestic violence can get worse when a relationship ends. It is important for you to take steps to be safe before you start a divorce. To learn more, read Domestic Violence and Divorce.

Can I Change My Name as Part of the Divorce?

If you are a woman and you changed your last name when you were married, you have the choice of keeping your married name or changing it in your divorce. Your Judgment of Divorce can restore your maiden name or the last name you used before your marriage. Or the judge can allow you to take a different last name. If you are the plaintiff, you must request the name change in your Complaint for Divorce. If you are the Defendant, you must file a Counterclaim for Divorce to request a name change.

The law in Michigan doesn’t work the same way for men. Men aren’t able to change their name as part of the divorce. Instead, they must go through the process of petitioning the court for a name change. To learn more, go to the Name Change toolkit.

What Will Happen to My Health Insurance?

Although Michigan law requires parents to provide health insurance for their children, there are no such laws for a spouse. However, if you currently have health insurance through your spouse's employer, the court may require your spouse to maintain your health insurance during the divorce process.

Under COBRA (a federal law), your spouse's employer must allow you to be covered by its health insurer for up to three years after your divorce. However, you must pay the premiums, which will probably be more expensive than when you were covered as a spouse. Also, COBRA doesn’t apply to very small companies (those with fewer than 20 employees). To learn more, read the COBRA Continuation Coverage page on the U.S. Department of Labor website.

What If My Spouse Is in Prison or on Active Military Duty?

Military Duty

Having a spouse on active military duty can complicate your divorce case. It may be difficult to find and serve papers on a service member stationed overseas. There are also state and federal laws that give people on active duty extra protections in civil cases. For example, the court won’t enter a default judgment against an active-duty spouse without first appointing a lawyer for them. If you are filing for divorce and your spouse is on active military duty, consider talking to a lawyer. If you have low income, you may qualify for free legal services. Whether you have low income or not, you can use the Guide to Legal Help to look for lawyers and legal services in your area.

Prison

In a divorce case involving minor children, you must notify the court if your spouse is in prison. In your complaint, you must state the following:

• That your spouse is incarcerated
• Your spouse's prison number
• Your spouse's location
• That a telephonic or video hearing is required by Michigan Court Rule 2.004

You must also have your spouse served with court papers even if they are in prison. To learn more, read How to Serve Divorce Papers.

Finding a Lawyer

You do not have to have a lawyer in a divorce case, but representing yourself in a divorce is not always easy. Consider talking with a lawyer about your rights and options even if you decide not to hire one.

The more complicated the issues in your divorce are, the more important it may be to have a lawyer. Consider talking to a lawyer if:

• You own real estate;
• You have a pension or retirement account;
• You have children born while you were married, but one spouse is not the parent;
• You need spousal support (alimony);
• Your spouse has been emotionally, verbally or physically abusive;
• You and your spouse disagree on one or more major issues in your divorce, such as property/debt division, spousal support, child custody, parenting time, or child support;
• Your spouse is on active military duty.

If you have low income, you may qualify for free legal services. Whether you have a low income or not, you can use the Guide to Legal Help to find lawyers in your area. If you are not able to get free legal services but can’t afford high legal fees, consider hiring a lawyer for part of your case instead of the whole thing. This is called limited scope representation. To learn more, read Limited Scope Representation (LSR): A More Affordable Way to Hire a Lawyer. To find a limited scope lawyer, follow this link to the State Bar of Michigan lawyer directory. This link lists lawyers who offer limited scope representation. You can narrow the results to lawyers in your area by typing in your county, city, or zip code at the top of the page. You can also narrow the results by topic by entering the kind of lawyer you need (divorce, estate, etc.) at the top of the page.