By Deborah Bennett Berecz
Collaborative law has been offered in Michigan since 2004 when a group of lawyers, mental health professionals, and financial specialists were trained to practice in this relatively new format. In this process, parties retain collaboratively-trained lawyers to specifically assist them with negotiating an agreement – not to prepare the matter for hearings or trial. Parties sign a “participation agreement,” agreeing to this defined scope of legal services, full, transparent disclosure of all information pertinent to settlement, and retention of a team of professionals trained in collaborative law, including a divorce coach. A series of meetings is conducted and when agreement is reached, a final judgment is signed and the petition is filed with the court.
ADR Context and Evolution
The Domestic Relations Arbitrations Act was enacted in
2000. Mediation court rules were adopted
in 2000. After a 14-year gap, the next
wave of ADR changes began, first with the Uniform Collaborative Law Act adopted
in 2014, the consent judgments court rules adopted in 2015, followed by court
rules addressing Limited Scope Representation in 2018. The trend continued with new court rules
effective April 1, 2019, specifically:
- MCR 3.222 Uniform Collaborative Law Act Process and Agreements
- MCR 3.223 Summary Proceeding for Entry of Consent Judgment or Order
MCR 3.222 and MCR 3.223 at a Glance
MCR 3.222 Uniform Collaborative Law Act Process and
Agreements
- Applies only to collaborative law process.
- Used with parties who began a collaborative process prior to filing (and likely, therefore, have reached agreement).
- Also used with parties who have already filed a traditional complaint for divorce and later enter into a collaborative process.
- Available only if a participation agreement has been signed under the Uniform Collaborative Law Act.
MCR 3.223 Summary Proceeding for Entry of Consent Judgment or
Order
- Does not apply to collaborative cases, but rather to cases settled prior to filing.
- Particularly useful for parties utilizing pre-filing mediation.
- A signed judgment of divorce or order for separate maintenance must be filed with the petition for divorce.
Purpose of the New Court Rules
Caseflow management processes implemented by courts across
the state for timely managing of divorce cases keep cases on track and
encourage settlement negotiations.
Traditionally, temporary hearings, facilitative and information
gathering conferences, settlement conferences, pretrials, orders to mediation,
and scheduling orders all ensure progress toward conclusion of the case and
entry of a judgment. However, these
events are unnecessary when using the collaborative process. The new court rules streamline the requirements
for such parties and allow for filing of “petitions” and simply scheduling a
finalization hearing.
In addition, for parties who have respectfully and diligently
participated in mediation or the collaborative process to reach agreement, the
contentious connotation of the caption “Plaintiff vs. Defendant” was
misleading. The new court rules provide
for cases to be brought “In the Matter of John Doe, Party A, and Jane Doe,
Party B.”
Procedural Changes
The petition for divorce is signed by both parties and,
therefore, neither a summons nor service of the petition upon either party is
required. There was no change to the
case codes assigned under MCR 8.117.
Petitions are still accompanied by a verified statement, if required,
and limited domestic violence screening forms, and may contain a request to
waive the six-month waiting period.
I was at one court’s filing room at 8:15 a.m. on April 1,
2019, the day the new court rules took effect, with two collaborative process
petitions. I have now filed numerous
collaborative and consent petitions in several counties. While initially court clerks were challenged
by computer systems that only had data fields for plaintiff and defendant and
required service of process, most have adjusted. Courts may increasingly appreciate that these
new cases utilize fewer staff and judicial resources once staff and computer
programs fully adjust.
Matters filed under the collaborative process court rule, MCR
3.222, do not require a hearing. Judges
in some counties now enter judgments and support orders upon expiration of the
relevant waiting period, and documents are simply returned via U.S. mail or
electronically. A hearing is still
required for consent matters filed under MCR 3.223, and both parties must
attend.
However, some Legal Assistance Centers do not yet offer
Petition for Divorce forms and would likely benefit from information or
training on the different requirements for this approach. Parties may then be
better supported in their goal of reasonably and cooperatively obtaining a
divorce in Michigan.
Waiver of Statutory Waiting Period
The statutory requirements for waiving the 6-month waiting
period for divorce matters involving minor children remains unchanged.[1] However, inclusion of this question item on
the petition form recognizes that parties filing under these new provisions
have likely spent substantial time developing a settlement before submitting to
the court’s jurisdiction, in effect expending the minimum waiting period or
longer during their settlement efforts.
Parties often experience an additional waiting period as a disincentive
for utilizing pre-filing mediation or the collaborative process, and find the
additional period of time their family remains in limbo difficult. Some judges recognize this burden as an
unusual hardship and grant waiver requests and ideally this will become a more
standard practice.
New Forms
The new court rules required new forms to incorporate new
language. For example, Petition rather
than Complaint, Party A replacing Plaintiff, and Party B replacing
Defendant. The following forms have been
developed by SCAO with these changes:
MCR 3.222 Collaborative Forms:
- CCFD 24 Petition (Collaborative Law Process). Replaces Complaint for Divorce for collaborative cases.
- CCFD 22 Joint Motion and Order to Stay Proceedings. Used when case filed as a Complaint for Divorce and parties later enter the collaborative process.
- CCFD 23 Status Report/Notice. Used as required by the court when Order to Stay Proceedings is entered by the court.
MCR 3.223 Consent Judgment Forms:
- CCFD 25 Petition (Consent Judgment). Used when parties have reached agreement in mediation or otherwise. Note: Judgment of Divorce must be filed with the Petition.
- CCFD 26 Notice of Request to Enter Consent Judgment. Used when a hearing to enter judgment is scheduled.
Existing form modified to reflect Party A and Party B:
- MC 282a Domestic Violence Screening
There are additional domestic relations forms, such as the
Uniform Child Support Order and Uniform Spousal Support Order that have not yet
been updated to reflect these language changes.
Stay tuned and check here
for updated SCAO forms.
Resources
For more information about the collaborative process, read
Collaborative Divorce: The Revolutionary New Way to Restructure Your Family,
Resolve Legal Issues and Move on with Your Life by Pauline Tesler and Peggy
Thompson.
Useful websites include:
- International Academy of Collaborative Professionals, www.collaborativepractice.com
- Collaborative Practice Institute of Michigan, www.collaborativepracticemi.org.
Deborah Bennett Berecz is a collaborative lawyer and mediator at Berecz & Associates, PLC, with offices in the greater Grand Rapids area and St. Joseph. Deb has been a mediator since 1995 and litigated cases until 2010. She quit accepting litigated cases after practicing collaborative law for five years and observing the difference it made for families in their post-divorce functioning. She has a bachelor’s degree in psychology and graduated from Notre Dame Law School in 1993. She has served as President of the Collaborative Practice Institute of Michigan (CPIM), Chair of the ADR Section of the State Bar of Michigan, and is a collaborative law trainer with The PRISM Perspective, LLC. She can be reached at dberecz@familyresolutions.us or (269) 428-3447.[1]
MCL 552.9f states in part: In cases of unusual hardship or such compelling
necessity as shall appeal to the conscience of the court, upon petition and
proper showing, it may take testimony at any time after the expiration of 60
days from the time of filing the bill of complaint.