The Michigan Divorce Process, Part III: Resolution

The papers have been served. The waiting period has been waited through. Discovery is complete. It’s now time to get down to brass tacks: the part where someone decides what life will actually look like as the now ex-couple moves forward. That means this is the part in which the property is divided, the spousal and child support payments are arranged, the custodial and parenting-time schedules are assigned, and any other items-at-issue are addressed. There are a few ways in which this can happen.

Agreement
The least common (but most preferred) way to resolve all of the pending issues is to have the divorcees agree on how they should be resolved. This can be done before the Discovery step via the Marriage Settlement Agreement, but if any significantly unexpected circumstances are uncovered during Discovery, you can expect the MSA to be overturned. After Discovery, it’s not all that common, but it’s still possible for two people to sit down and agree on how everything should be resolved without having to resort to outside expertise. For those who aren’t, there are other options.

Mediation
Mediation is a process in which a professional listens carefully to each person’s opinion, and does their best to get past the surface-level arguments and discern what the point of their arguments is. Then the mediator attempts to guide a discussion where each person’s point is taken into account, and help them come to an agreement. With the help of a mediator, many couples that couldn’t reach an agreement on their own are able to do so without taking up a significant amount of the court’s time. If the couple cannot come to an agreement with the help of a mediator, they must resort to an adversarial battle in court.

Binding Arbitration
A binding arbitration is much like mediation, but if the arbitrator cannot help the couple come to a voluntary agreement, the arbitrator will hear evidence much like in a court case. After hearing evidence, the arbitrator will issue a ruling much like a judge. Both parties agree to heed the arbitrator’s judgment before the process begins, so once it’s issued, it’s commonly taken to a judge and simply entered directly into the record.

(There is also non-binding arbitration, which is basically identical to mediation except that the arbitrator doesn’t begin with the goal of bringing the two sides to an agreement, but instead with the goal of deciding which party is ‘correct.’ It’s generally not applicable to the divorce process, as if you’re going to end up in an adversarial with your spouse, you want to do it in front of a judge, not a powerless stand-in.)

Trial
A trial is the last resort (but most common) way to resolve the pending issues of a divorce. Anything you and your spouse cannot agree on is explained to a judge, with both of you giving your opinions on what should happen on what evidence you base your opinion on. Then the judge will decide according to the laws and the directives he or she works under how to resolve all of the issues on the table. When the decision has been made, you’re stuck with it, no matter how much of it you object to. We’ll get into the specifics of how a trial goes in the next post.