When most people file for divorce, they have one question: “How long is this going to take?” For one couple, the answer is 7 years, and it’s not over yet.
Divorce is the end of one section of life, but it also the start of another. When the Complaint for Divorce is filed, one or both of the parties are often eager to move on. But they have to get through the court proceedings first.
How Long Does a Divorce Normally Take?
In Michigan, there are laws limiting how fast two people can get divorced. The law imposes mandatory waiting periods to make sure there is no chance for resolution:
- 60 days (2 months) in cases with no children
- 180 days (5 months) in cases with children
But not every case resolves quickly. The Michigan Supreme Court has set expectations on how long a divorce case should be allowed to take at the trial court level:
“Divorce Without Children. 90% of all divorce cases without children should be adjudicated within 182 days from the date of case filing
and 100% within 364 days.
Divorce With Children. 90% of all divorce cases with children should be adjudicated within 301 days from the date of case filing and 100% within 364 days.”
That means that as your case nears the one-year mark, you and your attorneys will get pressure from the judge to settle or prepare for trial.
Prenuptial Agreements Are Designed to Speed Up the Process
One way forward-thinking couples speed up the divorce process it to enter into a prenuptial agreement (also called an antenuptial agreement) before getting married. Prenups lay out what the parties intend to happen to their assets in the event of death or divorce. They identify which property will be held solely by each spouse (as separate property), and what the court should do with any jointly held property. They often also lay out expectations for contributions to the marriage, and spousal support and attorney fees during the divorce.
In theory, this means that if and when the marriage relationship breaks down, there isn’t much to argue over in resolving the property settlement. (Custody, parenting time, and child support cannot be resolved in a prenuptial agreement.) But things don’t always go according to plan.
Allard v Allard – The 7 Year Divorce
Earl and Christine Allard signed a prenuptial agreement two days before their wedding on September 11, 1993. That agreement said:
- Each party would keep any real estate or personal property owned prior to the marriage
- All joint property would be divided equally, with each party getting 50% of the value
- Any property acquired in one party’s name only (including retirement accounts) would belong solely to that party
- Any appreciation, increase, or decrease in value of an asset belonging to one party was entirely that party’s responsibility
- This distribution of property was in place of any right either party had to alimony, spousal support, property division or other rights either party may have as a result of the marriage.
Earl owned the parties’ home before they were married. In 1999, Christine became pregnant with the couple’s second child and became a stay-at-home mother. In the meantime, Earl had begun receiving annual gifts from his parents of up to $20,000. He also received loans from his father, which he used to buy real estate and form six limited liability companies (LLCs) solely in his name.
On July 28, 2010, Earl Allard filed for divorce. He asked for the court to distribute the parties’ property according to the prenuptial agreement. But Christine objected, saying that the circumstances of their marriage made enforcement of the agreement “unconscionable” – that it would be a shocking and unjust outcome. In 2011, the trial court judge held that the terms of the prenuptial agreement did not allow for the court to “invade” Earl’s share of the property to award Christine a fair portion of the marital estate, or to award spousal support or attorney fees. Instead, the court increased the monthly child support order by $1,000 per month to make sure the children would have the financial support they needed. When it came to property, Earl received $900,000, while Christine received $95,000.
Appeals Draw Out the Divorce Process
For the last 6 years, the case has bounced around the Michigan appellate courts as they tried to determine the effect of the Allards’ prenuptial agreement.
First, Christine’s attorneys appealed the trial court’s decision that the prenuptial agreement was enforceable. In 2014, the Michigan Court of Appeals held that it was, but that the trial court had inappropriately counted the property owned by Earl’s LLCs as his separate property. If family assets were used to establish those companies, the Court of Appeals said the income from them should have been divided as income earned during the marriage.
The case then went up to the Michigan Supreme Court, where the issue was again reversed. The Court said that a member of an LLC does not have any interest in the things owned by the LLC, but does have a personal property interest in the LLC itself. Because Earl owned each of the LLCs in his name only, they were his separate property.
However, the Supreme Court was not done, nor was the case. Michigan law generally allows the court to “invade” a one spouse’s separate property if necessary to reach an equitable resolution to the case. The Supreme Court asked the Court of Appeals to decide whether the parties could waive the court’s right to invade separate property.
On January 31, 2017, nearly 7 years after the case began, the Court of Appeals ruled that they could not. The court determined that the right to invade belonged to the court and could be used at the court’s discretion. Just as parties cannot waive a child’s right to child support, they cannot waive a judge’s right to accomplish an equitable resolution to a case.
It’s Not Over Yet
At the end of its decision, the Court of Appeals sent the Allard case back to the trial court so the judge could determine if invasion was necessary to reach an equitable result. And that could take another several months. Either party will then have the right to appeal, and with nearly $1 million on the line, the case isn’t likely to end any time soon.
Long Appeals Lead to Few Assets
Any time a divorce case drags on, it costs everyone involved a lot of money. Even taking a matter to trial can cost upwards of $20,000, per side. An appellate attorney’s initial retainer often starts at $5-10,000. By now, it is likely that the Allards have spent well over $100,000 in attorney fees and costs. That’s more than Christine was awarded in the first place.
That’s why it is important to remember what you are fighting over. When its $900,000, all those appeals may be appropriate. But in many cases, a couple may be fighting over a house or retirement account worth far less. Sometimes it takes objective, experienced family lawyers to help the parties see that what they are fighting for simply isn’t worth the cost.
Lisa J. Schmidt is a family lawyer at Schmidt & Long, PLLC, in Ferndale, Michigan. She handles divorce and custody matters. If you are considering a divorce contact Schmidt & Long today for a free consultation.