The person who initiates the complaint for divorce is called the plaintiff. The other spouse is the defendant. A divorce proceeding is commenced when the plaintiff files a summons and complaint. The summons is a form filed by the plaintiff’s attorney telling the other party that a divorce action has been filed. The summons advises the defendant that he or she has 21 days to file an answer if served personally, and 28 days if served by certified mail or other means. The complaint is a relatively brief document which in most cases simply sets forth the jurisdictional requirements for divorce and requests that the marriage be dissolved and property and debts be divided. In most cases, the complaint for divorce does not contain specific requests, other than for fair and equitable division of the property and a determination of custody and support if minor children are involved.
If you are served with divorce papers, immediately provide my office with copies of everything you receive. Make careful note of the date you were served and provide that information to me. If you receive anything by mail, keep the envelope, as the postmark may serve as evidence of when the items were mailed. If you do not respond to a complaint for divorce, you can be defaulted.
No matter what your spouse has said to you, be sure to file an answer to preserve your legal right to contest the divorce, even if you believe you will work everything out. I have been in court countless times when a defendant, having been defaulted, has tried to convince the judge that the default should be set aside based on assurances from the plaintiff spouse that everything would be worked out amicably, thus the defendant does not worry about filing an answer. Much to the defendant’s surprise, when the matter is not resolved through negotiations, the plaintiff files a default. This is not a good place to be, and a default can be avoided simply by filing an answer to the complaint for divorce, a relatively simple task.
If you have been served with a notice of default for failing to answer the complaint for divorce, call my Holland office immediately. In certain cases, a default can be set aside. Even if a default is not set aside, the person in default still has the right to appear at a hearing before the judgment of divorce is entered, where the judge must make a finding that the judgment is fair and equitable and in the best interest of the minor children before signing the judgment.
People often ask whether a pending complaint for divorce can be set aside if the parties reconcile. The answer is yes; however, if the defendant has filed an answer, the court will not dismiss the divorce unless both parties sign the stipulation for dismissal. If the plaintiff files a complaint for divorce and the defendant agrees that divorce is inevitable, sometimes the defendant will file a counterclaim, making it known that the defendant is also asking for a divorce, and even if the plaintiff has a change of heart, the defendant can push the process through to conclusion. We will need to discuss whether it would be advisable to file a counterclaim if you are the defendant.
The plaintiff in a Michigan divorce case is also required to file a verified statement which provides basic information on the parties and their children, as well as a record of divorce to be placed on file with the Office of Vital Records in Lansing once the divorce is finalized. The filing fee for a new divorce case is now $175. In cases with children, there is also a judgment fee of $80 which also must be paid when the complaint for divorce is filed.
If you have been served with divorce papers, it is vital that you act quickly to avoid default and gather the necessary information to respond. If I am your attorney, I will provide you a detailed list of all the information I will need you to assemble to better assist you in prosecuting or defending your divorce. Please call our Holland, Michigan office today to discuss your situation in detail.
© 2020 Thomas C. Kates, Attorney and Mediator