The Three Avenues of Michigan Divorce Law
November 25th, 2023
Michigan recognizes three different avenues to obtain a divorce: litigation, meditation and collaborative practice. Litigation requires people to work through the court system to obtain a divorce. The other two avenues avoid using the court system and offer a less costly divorce without the combat.
People who choose the litigation route usually hire attorneys to help them through the legal system, but some attempt to do it by themselves. One of the spouses will start the divorce by filing a complaint for divorce and then the Court will hold a series of conferences and hearings to move the case towards its purpose - a trial. Nonetheless, 99% of all litigated divorces will resolve by mutual agreement without a trial. This means that the court system is not designed for 99% of the divorces cases it handles.
Those who choose mediation and collaborative practice don’t file a complaint for divorce. Instead, they work out the terms of their divorce before they step foot into a courtroom. Mediation and collaborative practice are two methods that are designed to resolve divorces the way that 99% divorces are resolved - by compromise agreement. After the agreement is reached, the couple jointly file a petition for divorce with the court. Since the terms of the divorce are already worked out, the role of the Divorce Court is minimal in a mediated or collaborative practice divorce. The Court will simply review the paperwork and grant the divorce after a short perfunctory half hour or less hearing.
Mediation – An Overview
Mediation is a process in which a mediator acts as a neutral between the parties and helps them to resolve their dispute. A divorce mediator does not advocate for either side or make decisions for the couple. Mediation can be used by spouses who agree to resolve their divorce without ever stepping foot in court.
For divorcing spouses the first step in initiating a mediation is to agree upon mediation as their divorce process. The couple can then hire a mediator. The mediator will collect information about the couple, identify the issues that need to be resolved, meet with the couple and discuss the potential options for resolving each issue.
The mediator also acts as the couple’s divorce project manager. The mediator is skilled at identifying areas in which one or both spouses need assistance in order to make an informed decision. A mediator will provide this assistance or will bring in experts in various fields, such as financial or real estate, as needed. This can even include a limited scope attorney who can provide legal advice and guidance during the mediation at a minimal cost. Ultimately the mediator will keep the divorce on schedule and help the spouses to stay organized and focused. Mediation is truly the private enterprise alternative to divorce court.
Eventually spouses in a mediation are able to identify a mutually acceptable resolution to all issues in the divorce. At that point the mediator drafts a settlement agreement containing all of the terms of the divorce and a joint petition for divorce is filed with the court. Couples who mediate their divorce will usually only spend a half hour in court to have the divorce finalized after a perfunctory hearing.
Mediation is voluntary, meaning that it requires both spouses to agree to use mediation as the method to obtain a divorce and either spouse can choose to end a mediation at any time.
Collaborative Practice – An Overview
Michigan law recognizes collaborative practice as a way to provide full time legal representation to divorcing spouses while avoiding the involvement of courts and combative attorneys.
A collaborative practice divorce begins with each spouse hiring an attorney with training in the collaborative practice process. Like all attorneys, collaborative attorneys are full-time advocates for their clients and are involved in every step of the divorce process. What sets collaborative attorneys apart is a shared common focus on finding a mutually acceptable settlement. This shared focus delivers less expensive and adversarial divorce process.
After collaborative attorneys are retained the spouses and the attorneys will sign an agreement called a “participation agreement”. The agreement sets forth the rules for how the couple will resolve the divorce outside of court. These rules include provisions for the confidentiality of the process, good faith negotiations, and the full disclosure of all assets. Since collaborative practice is 100% voluntary, nothing prevents either spouse from ending the collaborative process at any time.
Once the participation is signed, the attorneys and the spouses gather together all of the relevant information and identify the issues in the divorce to be resolved. Together they will decide whether other experts should be involved in the process, such as financial or mental health professionals, to help both spouses make informed decisions. When a final agreement is reached the attorneys will file a joint petition for divorce and handle all of the necessary paperwork to make the divorce official.
Like mediation, collaborative practice is a voluntary process.
Litigation – An Overview
In its simplest terms, litigation is the process that involves handling the divorce in court. It begins as any other lawsuit does, by having one spouse file a complaint for divorce in court. The complaint will be formally “served” on the other spouse, and the served spouse will need to file an answer to the complaint. A judge will be assigned to oversee the divorce by holding a series of conferences to monitor progress and hold hearings when disputes arise along the way. The judge has a time limit on how long the case can continue and will set a trial date by which the parties have to resolve the divorce or start a trial.
People can hire attorneys to represent them during this process or can choose to go forward without attorneys. Those who represent themselves are usually trying to avoid the high cost of hiring an attorney to represent them. This is not easy to do, as our court system is not designed to help lay people. The Court system is designed to operate with attorneys who know their way around complicated court forms and procedures.
It comes as a surprise to many people that 99% of all litigated divorces are resolved by compromise agreement, not trial. But what surprises people the most during a litigated divorce is that they are expected to resolve their divorce without a trial. Courts don’t want to use trials to resolve divorces. In fact, Courts can’t resolve more divorces via trial because the court system is overburdened, and this was true before Covid made the situation far worse. No one is looking to fix this overburdened state of affairs. Instead, it has simply been accepted as the way it is.
Today courts are run on the assumption that cases will settle without a trial, and therefore can operate under high caseloads that allow only a small amount of time to be spent on each case. This reveals itself when people notice how little the judges know about their situation before making decisions that affect their lives. This isn’t the fault of the judges or their staff, who are hard-working and dedicated professionals. Like the roads in Michigan, our court system is woefully underfunded. I recall one judge admitting this to her entire courtroom in moment of honest despair, when she stated from the bench that she does not run a court, she runs a mill.
Eventually people in a litigated divorce come to realize that it is better for them to resolve the divorce by compromise if they want to avoid the high cost of continuing the divorce in court and unpredictability of a trial.
Divorce litigation is a paradox. It is a system designed to prepare for and resolve disputes through trial despite the fact that trials are disfavored, not expected to happen and will almost never take place. In fact, trials are used as a threat to convince people to resolve their divorce by agreement.
So why do some people choose litigation? It is the right choice for some spouses in an abusive relationship. It is also a non-voluntary process, so one spouse can force a reluctant spouse into a divorce. Sadly, it is often a default choice because people don’t know that they have other options, and many divorce attorneys fail to educate their clients about their options.
Cleland Collaborative Divorce is dedicated to the goal of helping people make educated decisions about their divorce. If you want to learn more about your options, the call is free and so is the advice. Just call 586-876-9165.
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