Many parties to a divorce have never previously dissolved a marriage. Some may not even have been in court for a civil proceeding. As a result, they may encounter many new and unfamiliar terms.
Understanding these terms, as well as the concepts they represent, is essential for helping divorcing spouses protect their rights and obtain a positive outcome in their cases.
Divorce Terms
Divorces are different from many other types of legal proceedings. They often involve the use of unique words and phrases. You may encounter the following terms during your divorce proceedings:
Divorce or Dissolution
The terms “divorce” and “dissolution” are often used interchangeably. To understand these words, you must first understand the legal concept of marriage.
Under the law, marriage is a legal relationship that creates obligations and duties between the spouses. It also creates obligations and duties between the married couple and outside parties, like banks and mortgage lenders.
A divorce or dissolution terminates the marriage. However, before the relationship can end, a court must unwind all those obligations and duties. For example, all debts the couple incurred during the marriage must be resolved, either by paying them or by assigning them to one spouse to pay.
Divorce proceedings resolve issues that fall into four primary categories:
- Child custody
- Child support
- Property division
- Spousal support
Once the court addresses all the issues in these categories, it can “dissolve” the marriage. After the dissolution, the parties become single and may remarry without violating bigamy laws.
No-Fault Divorce
A no-fault divorce means the parties don’t need to cite any reason for the divorce other than irreconcilable differences. In other words, you can file for divorce in Michigan simply because you no longer want to be married.
In fact, Michigan is one of the few no-fault-only divorce states, meaning you can’t allege any other reason for the divorce.
As such, you can’t argue that you want a divorce because your spouse cheated on you, committed financial misconduct, or even abused you physically. The only ground for divorce in Michigan is an irretrievable marital breakdown.
This doesn’t mean your spouse’s conduct is entirely irrelevant. For example, abuse may be relevant to custody determination, and financial misconduct may be relevant to alimony arrangements. However, you can’t cite them as the reason for the divorce.
Uncontested/Contested Divorce
Divorces may be contested or uncontested. An uncontested divorce means you and your spouse agree on how to resolve all the issues between you. With a contested divorce, the spouses disagree on at least one issue and require the court’s assistance to resolve it.
For instance, suppose that you and your spouse own no property, have no children, and agree to split your debts according to who incurred them. If you both agree that there will be no alimony, you may be able to enter into a settlement agreement and obtain an uncontested divorce.
However, if you’re seeking alimony and your spouse refuses to pay it, you have a contested divorce. You may need to go through mediation on that issue or leave it to the judge’s discretion unless you can resolve your differences.
Property Division
The property you obtained during your marriage belongs to you and your spouse together. It doesn’t belong to either one of you individually unless it falls into one of several narrow categories, such as gifts and inheritances. Property division is the process of determining post-divorce ownership of each piece of property.
In some cases, you and your spouse may jointly own property after a divorce. For example, if you have a family business, you might agree to co-own the business after divorcing. However, in most cases, the court will divide the marital property between the spouses. In doing so, the court will first identify any separate property that belongs only to one spouse.
The most common category of separate property is property owned before the marriage. This type of property usually belongs solely to the spouse who acquired it. Gifts and inheritances given to one spouse are also traditionally considered the separate property of the spouse who received them.
Marital property is divided equitably, not necessarily equally. Therefore, you shouldn’t expect to receive exactly 50% of the marital estate. Instead, you and your lawyer will argue for as large a share as possible of the property acquired during marriage.
Spousal Support or Alimony
The terms “spousal support” and “alimony” are also used interchangeably. They refer to post-divorce financial support of one ex-spouse by the other.
Alimony is often a contentious issue because spouses typically view divorce as a complete severing of the ties between them. Spousal support continues the financial relationship after the divorce.
The law entitles spouses to seek post-divorce financial support in many situations. In determining alimony, a court will examine factors such as:
- The length of the marriage
- The health, ages, and earning capacity of each spouse
- The property awarded to each spouse
- The parties’ contributions to the marital property
Alimony may continue indefinitely. However, most judges will limit support to a specific number of years or until the ex-spouse receiving the support remarries.
Final Judgment or Divorce Decree
The final judgment in a divorce, also called the divorce decree, outlines the rights and obligations of the parties after the dissolution of the marriage. It addresses property division, custody rights, and any alimony awarded.
If the parties resolved their case through a settlement agreement, the final judgment usually incorporates all the agreed-upon terms. However, a judge also has the authority to deviate from the settlement if the law requires it.
In contested cases, the judge decides the contested issues after a trial. They base their judgment on the evidence presented and the applicable law.
This judgment is enforceable if either party violates it. An ex-spouse can prompt further legal proceedings by filing a motion. If the judge determines that the other ex-spouse violated the divorce decree, they can hold that individual in contempt.
Modification
A judge has the latitude to modify the final judgment following a material change in circumstances. For example, an alimony order may be modified if the ex-spouse paying support loses their job.
Modification most commonly occurs when the divorcing spouses have children, and one of the parents wishes to move. In this case, the terms regarding custody and parenting time may need to be adjusted to accommodate both parents’ rights.
Custody-Related Terms
Child custody is one of the most important issues in many divorces. The resolution of this issue will determine how and where the child is raised. Here are some terms you may encounter relating to your children:
Legal Custody
The term “custody” refers to a person’s rights pertaining to their child. Custody has two components, legal and physical. Legal custody means the custodial parent has the right and duty to make decisions that affect the child’s upbringing, such as:
- Medical care
- Education
- Religious instruction
- Extracurricular activities
Parents almost always have legal custody, even if they don’t have physical custody.
Physical Custody
Physical custody refers to the child’s living arrangements. This decision involves many factors, including how far apart the parents live. Judges will usually try to maintain some continuity for the child by keeping them in the same school.
Physical custody determinations can also involve elements beyond mere location. The parent accustomed to handling the child’s daily routine will often continue in that role after the divorce.
Sole and Joint Custody
Custody can be sole or joint. In most cases, the parents will share joint legal and physical custody. However, certain circumstances may result in sole custody being awarded. In such situations, judges analyze and determine legal and physical custody separately.
For example, if one parent is incarcerated, the parents might have joint legal custody, but the non-incarcerated parent will have sole physical custody. Similarly, if a parent has abandoned, abused, or neglected the child, the other parent might get sole legal and physical custody.
A parent with sole legal and physical custody has complete control over decisions involving the child’s upbringing and living arrangements. Where parents have joint custody, they must work together to raise the child.
If a dispute arises between parents with joint custody, they’ll typically attempt to negotiate a resolution, possibly with the help of a mediator. If they can’t reach an agreement, they can ask a court to step in and resolve the dispute.
Parenting Time
The term “visitation” is now considered outdated because it implies that one parent contributes less than the other in joint custody. It has been replaced by the phrase “parenting time,” which recognizes that both parents can contribute to the child’s living arrangements and upbringing.
Parenting time is the schedule used to determine where the child lives. For example, a child may live with one parent during the school week and the other on weekends. Parenting time also establishes where the child will spend holidays and school breaks.
Furthermore, a parenting time agreement may also address issues relating to the child’s living arrangements, such as:
- Who is responsible for transporting the child from one parental home to the other
- Whether and how the parents can modify the parenting schedule
- What happens when a parent is unavailable during their scheduled parenting time
Most importantly, the parenting time agreement will usually explain how the parents are to resolve disagreements. Mediation may be required before going to court.
Child Support
Parents in Michigan are required to financially support their children. Divorce judges determine which parent must pay child support (and how much) based on a formula. This formula factors in each parent’s resources and the child’s needs to determine how much each should contribute to the child’s financial support.
Generally, the parent who provides the child’s primary residence will be entitled to seek support from the other parent. The logic for this assumption is that this parent will incur more expenses for housing, food, and utilities on behalf of the child.
Best Interests of the Child
All issues involving children, including custody and financial support, are approached using a legal standard known as the “best interests of the child.” In all matters, the court will put the child’s interests ahead of the parents’ preferences to objectively decide what’s best for the child.
In Michigan, the following factors may be considered when determining the child’s best interests:
- The existing ties between each parent and the child
- Each parent’s ability to maintain a relationship with the child and raise them in the way they’re accustomed to
- Each parent’s ability to provide for the child’s needs
- Which parent received the family home
- The mental and physical health of both parents
- The child’s preference
- Whether the child was abused or witnessed domestic violence
Even if the parents negotiate a divorce settlement, the court will still examine whether their custody and parenting time arrangement serves the child’s best interests.
Litigation Terms
There are many unique and archaic terms used in the field of law. You may encounter the following terms during your divorce case:
Plaintiff or Petitioner
The plaintiff is the spouse who files for divorce.
Defendant or Respondent
The defendant is the non-filing spouse.
Complaint for Divorce
The complaint initiates the divorce proceedings. In Michigan, it alleges that the marriage is irretrievably broken. It also confirms that the court has jurisdiction over the divorce based on where the spouses live and how long they’ve lived there.
Answer
The defendant can formally respond to the complaint for divorce with a statement known as an answer.
Hearing
A hearing is a formal proceeding that involves the divorcing spouses and a judge. The judge may receive evidence, including testimony, during the hearing. The spouses’ respective divorce attorneys will also present legal arguments.
Mediation
Mediation is a dispute-resolution method that serves as an alternative to litigation. A mediator tries to facilitate an agreement between the parties by finding areas of common interest and suggesting solutions.
Mediation isn’t binding. If a mediation session fails to produce an agreement, the parties may submit their dispute to the court.
Evidence
Evidence is anything that tends to prove or disprove a disputed fact. In a divorce, evidence often includes financial records and the testimony of both spouses.
Contact Gucciardo Family Law for Help With Your Divorce
A divorce may be one of the most emotionally difficult events of your life. A trustworthy lawyer can help you understand your rights and legal options as you navigate this complex process. Contact Gucciardo Family Law today to discuss your divorce and learn more about how we can advocate for you.
