Divorce is an unfortunate reality in the lives of many people who are married. The reasons why people file for a divorce are as varied and complex as the couples themselves. Whatever the reason, at least one spouse comes to a fork in the road and decides to end the marriage. Married couples find themselves having to deal with the emotional and financial aspects of both the divorce process itself and being forced to plan to live apart from the person with whom they had once planned to build a future. If children are involved, the emotional and financial issues may multiply significantly. The divorce process in court involves basically two main issues: Property Division and Child Custody. Each main issue may or may not be complicated and difficult to resolve depending on your individual situation and conduct of each party.
Michigan does not have what is known as “legal separation”. Michigan law does allow for separation agreements or judgments of separate maintenance. These agreements or judgments provide for the support of a spouse or the maintenance of other financial matters (such as paying bills) while one spouse is separated from another.
If you are, or have been separated from your spouse for some time, it may be in your financial interest to consider divorce to protect your financial interests.
What used to be called “alimony”, spousal support is intended to be used for the support of a spouse after divorce or when you are separated. It is a need-based system that could be temporary or permanent depending on the ability of the supported spouse to take care of him or herself. While there are computer programs that can provide some idea as to the possibility, length of time, and amount of support, each case is different and each judge has their own method of determining what support, if any is ultimately awarded.
Child support is a right of each child to be supported by both parents. The amount of child support is calculated using the “child support guidelines” unless the court determines that there are special circumstances that require it to award child support that is different from the guidelines. Michigan’s Friend of the Court Web site has more information and there are several computer programs available so that you can calculate what you can expect to pay or receive.
Child support is based on the incomes of both parents and the number of children each parent is responsible to support. The number of overnight parenting time days with each parent may also impact the amount of support paid.
Michigan law provides that each child has the right to a meaningful relationship with each parent. Since his or her parents are now living apart, a parenting schedule with each parent needs to be worked out. Unless there are clear and convincing reasons not to, if both parents work out and agree upon a parenting time schedule, the court will adopt it. If the parents cannot come to an agreement, the court will decide. Mediators, and parenting time coordinators may be helpful in assisting parents understand the many types of options that are available.
It is important that each parent look at their children’s individual needs and their ability to exercise the proposed parenting time when creating such a schedule.
We have available software that assists parents create a workable parent time plan.
If your order provides for “joint legal” custody, the law forbids a parent from moving the child more than one hundred (100) miles away without permission of the court. The judge must consider multiple factors before coming to a decision to allow one parent to move the child far away from the other parent. The intent of this law is to prevent one parent (usually the custodial parent) from moving so far away so that parenting time becomes extremely difficult or even impossible for the other parent.
The latest court order states what your current custody order is. It may state joint legal or sole legal, or joint physical or sole physical. It may not even mention the term “physical custody”, but may identify what parent’s residence is their “primary residence”. Regardless of the order, the judge may not change the custody order unless the court decides that there has been a significant change in the circumstances since the last court order such that it affects or may affect important aspects of the child’s life. If the court determines that there has been a change in circumstances, then the court must make findings as to the best interests of the child before ordering a different custody arrangement. A motion to determine a change of circumstances is required before the court will investigate the “best interest factors” relating to child custody.
Change of Parenting Time
The court may make changes in parenting time if it finds by a preponderance of the evidence (more likely than not) that the change in parenting time is in the best interests of the child. This type of process is much different than a change of custody process. A motion to the court is required to make a change in parenting time. Simply stated, the judge is able to change a parenting time schedule with or without an evidentiary hearing.
On January 3 rd, 2005, Michigan’s grandparent visitation law was signed and became law in Michigan. The law provides grandparents, under certain circumstances, rights to request visitation time with their grandchildren after they’ve been denied visitation by a child’s parent. The law as signed can be found at www.michiganlegislature.gov and search for senate bill No. 727.
Property Division in Divorce
In a divorce, the court must make an “equitable” distribution of property in a divorce case. Generally, this distribution is near a 50-50 split. At times however, the court may take into account the fault of one party and award more than 50 percent to one party. The first part of the process is to determine what is “marital property” and what is the “separate property” of the parties. An example of “marital property” could include the marital home that was purchased together after marriage. An example of “separate” property could include a car that was owned by one of the parties prior to marriage. As in many areas of the law, however, the facts of each case are important as the issue of “marital property” and “separate property” frequently becomes blurred.
The parties may enter into a settlement agreement that covers the property distribution. This agreement may be made part of, or kept out of the actual judgment of divorce for privacy reasons. A property agreement may be drafted before the actual divorce is filed. If a husband and wife are having problems and both realize that divorce is a real possibility in the future, they may wish to agree to a property agreement before the emotions of the divorce case affect their judgment. The agreement may have a time frame included so that it will expire after a certain amount of time if no divorce is filed.
Unless authorized by law, or sealed by the court, court records are public documents. Anyone can go down to the courthouse and review any court file. Copies may be obtained for minimal cost. If you require certified copies, the cost may be higher depending on the county.
In an annulment, the court voids the marriage. Legally, therefore, the effect of a judgment of annulment is that the marriage really never took place. The reasons for an annulment include fraud, or if one person was still married at the time of the marriage in question.
Prior to filing a Complaint for Divorce in Michigan, the person filing the Complaint must have been a resident of Michigan for at least 180 days and a resident in the county for at least 10 days before filing the Complaint. If you are involved in a paternity case, or if you are “post-judgment” and you have outstanding child custody, child support or other issues to resolve, the court that issued the last order has jurisdiction in the case.
In some instances, there are advantages with being the first one to file a divorce Complaint. If one party has previously moved to another state, or county, you may be stuck defending a Complaint for Divorce in another county or even in another state. This possibility may be especially difficult if there are children involved and you are their primary care giver.
Another possible advantage to filing first is to attempt to prevent you spouse from disposing of assets, or removing money from accounts after they learn that you have filed for divorce. Also, if kids are involved, child support, parenting time and other matters involving the children may be addressed right at the time you file a Complaint.
The person filing a Complaint is called the Plaintiff; the person who has to respond to a Complaint is called a Defendant.
Discovery is a legal term that describes the process of finding out the important information about the other party or case. Discovery may include interrogatories, depositions, request for production of documents and things. Your attorney will provide you with a copy of the questions or other information you will need to comply with the request.
There is a standard set of information that is needed in most divorce cases, but your help is needed to determine any special information that may be needed. For instance, you may know of the existence of e-mail, computer financial records, important witnesses that may help your case.
Unless certain circumstances exist, the court will not enter a judgment of divorce unless 60 days have passed after the filing of the Complaint. If children are involved, the court must wait 180 days. The court may change that “waiting period” if a motion is brought and the court is satisfied with the reasons. Some judges are more strict than others when it comes to waiving this waiting period.
The parties can reconcile at any time during the Divorce process. If the parties would like to reconcile, the Complaint must be dismissed. If the reconciliation doesn’t work out, either party can file another Complaint for Divorce at any time.
Domestic Violence and Abuse
Tragically, violence within the family is a common finding in America. This violence or abuse may be directed against the spouse or the children. If domestic violence and/or abuse is going on in your family, make sure that you let your attorney know as soon as possible. Motions and/or orders may be needed to protect yourself and/or children before the Complaint is served.
Injunctions and Protective Orders
Injunctions and protective orders are orders of the court that are issued to prevent harm until further hearings of the court. These may be obtained by one party themselves (ex-parte) with or without a hearing.
In some cases a person may choose to disobey a court order. This is called “contempt of court”. If the judge decides that a court order has been violated, the judge could hold that person in contempt and order that person to pay a fine, the other person’s attorney fees or even go to jail. If you are considering not doing something that the court has ordered, think twice and before making the final decision, make sure that your attorney knows about it in advance and that he/she has had a chance to discuss the potential consequences of the action.
The Michigan Child Custody Act provides a framework for courts to determine child custody issues. The term “custody” is a term that is poorly defined in Michigan law and, consequentially, causes a lot of conflict and confusion. Commonly, people including lawyers and judges, refer to the terms of “legal” and “physical” custody”, and joint custody”.
In terms of joint custody, the law defines that term as “(a) that the child shall reside alternately for specific periods with each of the parents. and (b) that the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.”
When there is a conflict between the parents, it will be up to a judge to decide on all custody issues. Basically, these issues involve two questions: (1) should both parents share authority in making major decisions involving the child and (2) how parenting time is to be shared. The judge is required by law to make these decisions in the “best interests of the child”. The “best interest of the child” is defined by law as the sum total of the following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
Property includes real estate and personal property, (both tangible and intangible). Real Property includes real estate, houses, vacant land, and condominiums. Personal property includes retirement funds, pensions, IRA’s, businesses, coin collections, etc. Basically, if it has a value it will be considered as property. One of the first tasks (homework) that your attorney will give you is to provide a list of everything you own and every debt that you owe. DO NOT HIDE assets. These assets are usually found, and if they are found, you will look like a fraud and liar to the court, and the judge won’t believe anything that you tell him/her in the future. If the court finds that you withheld these assets from the court, the judge may order that the entire hidden asset be delivered to the other party, and probably will order you to pay the other party’s attorney fees necessary to find the asset and bring the matter before the court.
After all the property (real and personal is listed) and all the debt is listed, the next step is to determine what is separate property and debt and what is marital property and debt. Separate property and debt is awarded or assigned to the party who owned it, or owed it before marriage. Sometimes, however, if the other party contributed to the growth of an asset in any way, or after marriage the other party’s funds were commingled with the premarital asset, the asset will be determined to be part of the marital estate. In terms of debt, if the debt is clearly premarital (i.e. student loan) then it may be assigned to the party who owes the debt. This is not a hard and fast rule, however. Each marriage is different and each circumstance is different an arguments may exist that will assign a pre-marital debt to both parties.
Once the marital assets and debts are identified, they will, most likely, be divided between the parties in an equal way. If the court finds that one party is substantially at fault for the breakdown of the marriage, the debts and assets may be divided so that the “at fault” party may be assigned more of the debt. While fault may be a factor the court will consider, the “bottom line” effect of fault may be minimal.
Sometimes the method of property and debt distribution has some tax consequences. You may wish to obtain tax advice from an accountant regarding these issues prior to settlement.
Filing bankruptcy is a last resort, but it is one that should be considered if you have no other option. Spousal support and child support are not dischargeable in bankruptcy. If you are considering bankruptcy, seek the advise of an attorney who focuses their practice on bankruptcy.
Spousal Support (Alimony)
What used to be called “Alimony” is now called “spousal support”. Spousal support is available to either spouse based on need. Support may be permanent or temporary, and it may be modifiable or non-modifiable. Modifiable spousal support is support that can change over time if the circumstances of either party change. For instance, if the former wife is getting support and she remarries and her new spouse makes enough to support her, her need for support may have decreased. The former husband in that case, may file a motion with the court to have the support amount reduced or even eliminated. Or, if the former husband is getting support from his former wife, and he loses his job, or becomes injured, or otherwise increases his needs, then he can motion the court to increase the amount of support paid to him by his former wife.
Credit Accounts/Utility Payments
Many people get deeply into debt prior to filing for divorce. One of the most common reasons why marriages get to the point of divorce involves financial difficulties. If you have a lot of debt, you should talk the necessary steps to correct this problem as soon as possible. Typically, while the divorce case is pending, the family’s finances will be maintained as they had been before the filing of the Divorce Complaint. If there is a court order regarding the family’s finances, and there are reasons to change the “normal” way of doing things, then there must be a new court order allowing the change.
After consulting with your attorney, you may wish to close joint accounts and notify the banks that you will no longer be responsible for any further added debt on an account. You may wish to open an account in your own name in order to begin to separate your finances from your spouses. Sometimes, the court may be upset with a spouse doing that before the divorce was final, but it is always easier to put money back into a joint account than it is to get it back from a spouse that has “drained” the joint account and spent all the funds. It is easier to explain this type of action to the court if your intent is to protect yourself, or your children financially.
Do not close utility (phone, gas, electric, water) accounts without consulting your attorney, or without a court order allowing you to do so.
After the divorce case is final, you should make sure that all the credit card companies and banks are notified that you will no longer be responsible for your spouses future charges and that you name should be taken off all accounts.
If you cover your spouse and/or children on your medical/Dental insurance policy, do not drop them from your policy until the divorce is final. If you do so, you may very well be responsible for the costs, including any attorney fees, associated with getting them reinstated, or treated.
If you are the spouse covered by the other spouses policy from work, then you may be eligible for COBRA coverage. Pursuant to COBRA legislation, you may be eligible after the divorce is final for certain insurance coverage under group rates. Unless it is included in your divorce judgment, you will be responsible for paying that. If you have children, they will still be eligible under the “covered” spouses policy.
Children and Divorce
If you have children, the divorce will probably be more difficult on them than it will be on you or your spouse. Children may think that the divorce is their fault. They may fear what is going to happen to them in the future. Will they have to move out of their home, leave their friends, start a new school. Children may experience, confusion, depression, anxiety, guilt, anger or other emotions. These emotions may be expressed in many ways including acting out, crying, unusual quietness, withdrawal from you or their friends, poor school performance and so forth.
Each parent has the responsibility to help their children with this huge change in their life. One of the most important things that you can do for your kids is to avoid arguing in front to the kids, and avoid “badmouthing” the other parent to the kids. This can be a very very difficult task if the other spouse is being difficult, or instigating arguments at all possible opportunities. You attorney and your family law judge will have several suggestions and tools available to assist you should you need help with minimizing the impact of the spousal dissent on the kids. While family law judges are all different in the way they handle divorce cases, everyone of them truly cares about how the children are being impacted and will assist families as much as is legally possible to minimize the negative impact on the children. Because judge’s try so hard to help the children of divorce, if one spouse’s behavior is hurting the children, judges will come down hard on them even to the point of denying them parenting time, or kicking them out of the marital home.
The Michigan Court’s web site has a downloadable document called “Michigan Parenting Time Guidelines” that contains a lot of information to assist parents and children through this process. Please check on the links section of this web site.
Parental Kidnapping is a very real problem in this country. Parents take the children across state lines and sometimes to other countries without legal authority to do so. If you suspect that your spouse, or the child’s parent, may take you child and “disappear” with them, please let your attorney know as soon as possible so that protective measures can be explored. An example of one option is to have the potentially offending parent surrender their passport to the court. If your child has been taken out of the country and court action is needed to get them back, the Geneva Convention controls the case. Not all countries have signed the Geneva Convention, and if your child is taken to a country that has not signed it, then it may be more difficult to get the kids back.
If you spouse or parent of the child takes them to another state, the state that issued the last order will have jurisdiction over the case. You will have to file a motion in that court to obtain an order ordering the kids back to your state.
Keeping Records during the Divorce Process
It is very important for you to keep accurate and detailed records of your financial issues and, if you have kids, records about your children and their activities. These records include what you are spending on normal household expenses for you and the kids. (Mortgage, groceries, school supplies, rent, utilities, cell phone, car payment, insurance, etc.) These records include copies of credit card statements, tax returns, wills, deeds to the home or other property, bank account statements, cancelled checks, pension and retirement account records, life insurance, health insurance records, medical records to document illnesses and costs of treatment. Do not write on the copies as these may be used as evidence in a court proceeding and your notes or comments may cause some problems.
Keep the copies in a safe place to prevent your spouse from destroying them, or altering them in some way. A good place is with a trusted friend or family member, or a bank safe deposit box.