 |
|
|
|
|
|
|
|
|
|
 |
|
||||||||
 |
 |
 |
|
||||||
 |
|
||||||||
 |
 |
 |
|
||||||
 |
|
||||||||
 |
|
||||||||
 |
|
||||||||
 |
 |
 |
|
||||||
 |
|
||||||||
 |
 |
 |
|
||||||
Divorce
Information
The
following material is intended to answer some of your questions about
Michigan divorce proceedings in general. It is not intended to answer
specific questions about your particular case, since each case is different.
Our experience has shown that most divorce cases are settled, which means the parties reach an agreement that is placed on the court's record. NEVER AGREE TO SOMETHING YOU DO NOT UNDERSTAND OR SOMETHING YOU FEEL YOU ARE FORCED TO AGREE TO. YOUR CONSENT TO AN AGREEMENT MUST BE VOLUNTARY, AFTER CONSULTATION WITH YOUR ATTORNEY. After an agreement is placed on the record, it is extremely difficult and sometimes even impossible to change it.
Temporary Orders While Your Case is Pending
Pre-Divorce
Financial Planning Recommendations
for the Secondary or Non-Wage Earner
Pre-Divorce
Financial Planning
for the Larger or Primary Wage Earner
Grounds For Divorce
Michigan is known as a "no fault" divorce state; however, the words "no fault" may be misleading. If the parties reach a final settlement on all issues, fault is not a factor. If there is a dispute about alimony, property, support, parenting time, or custody, fault may become an active ingredient in resolving these issues. For this reason, your attorney may go over the indiscretions of the parties with you.
Basically, Michigan has one ground for divorce: "There has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved." In court, some judges require only a recital of this assertion. No details need to be provided.
Legal Separation
In Michigan, we have legal separation that is known as "separate maintenance." This arrangement is seldom done. The procedure is similar to a divorce, except that neither party may remarry. The law states that if one party institutes a separate maintenance suit and the other party files for divorce, the court will only consider the case as a divorce matter and cannot enter a judgment of separate maintenance.
Annulment
We also have annulment proceedings in Michigan, which invalidate a marriage. Marriages may be void from the outset or be voidable, depending on the circumstances. The grounds include incapacity to marry, such as insanity, bigamy, under age, or any type of fraud that goes to the heart of the marriage. Parties wishing an annulment must not cohabitate after having discovered the grounds for the annulment of the marriage.
If you have any questions about separate maintenance or annulment, please ask us. The following materials basically concerns divorce (though there may be similarities between divorce and separate maintenance and annulment actions).
Divorce Procedure
The initial filing of a divorce case may include the following documents:
- Summons. This document notifies the other spouse that a suit has been started. He or she has 21 days, if personally served in Michigan, to respond or a default may be taken (28 days if served by mail or if the other spouse lives outside of Michigan). If a party is defaulted, he or she may not be allowed to participate in the proceedings.
- Complaint. This document states the names of the parties, where, when, and by whom you were married, the names and birthdays of the children (if any), the wife's and husband's names before marriage, the length of residence in the country and state, the date of separation, the grounds for divorce, a statement as to property, whether the wife is pregnant, and the relief requested. A party must reside in Michigan for at least 180 days and in the country where the suit is started for at least 10 days. There are some exceptions to the residency requirement.
- Affidavit of Service and Return of Service. This is filed when service of papers on the spouse is made.
- Affidavit of Previous Suit. This informs the court as to whether the parties have filed for divorce before or had any case in another court.
- Statement to the Friend of the Court. This is to inform the Friend of the Court of the essential facts (it is unnecessary in cases where Friend of the Court services are not required).
- Affidavit. Another affidavit lists the child's or children's residences during the past five years and states that no custody action involving the child is pending (it is only needed when minor children are involved).
- Record of Divorce. This is a statistical record required by the Michigan Department of Health.
- Injunction. This is only requested when needed to restrain a spouse from committing certain acts. Your attorney will explain this procedure to you in detail and ask if you want an injunction.
- Ex Parte Orders. These may be obtained for temporary custody, support, etc. A timely filed objection to the ex parte order will negate the effectiveness of the order until a hearing on the matter.
- Affidavit for Ex Parte Order. This sworn statement affirms the facts stated to obtain the ex parte order are true.
- Circuit Court Filing Fee. The court filing fee will be between $100 and $150. There is also a charge for serving papers. Later on, there may be other costs for services, such as the cost of appraisers, actuaries, accountants, depositions, etc. You will be advised before any of these expenses are incurred. There may also be Friend of the Court and judgment fees.
- Notice of Hearing, Praecipe, Motions, and $20 Filing Fee. These are required for any motion that requires a hearing. A motion is a request to the court for some type of relief. A praecipe is a court form requesting that the matter be set for hearing. Notice of hearing advises that a hearing will be held.
- Judgment of Divorce. This is the final document that grants the divorce and states the terms of the divorce. When there are children involved, a fee is required.
Procedure
The plaintiff is the party who starts the lawsuit. The defendant is the person against whom the suit is filed. The divorce is resolved by the family division of the circuit court. The office of the Friend of the Court makes recommendations for spousal support, child support, custody, and parenting time. This office also collects and distributes the spousal and child support payments. If may also request enforcement of court orders dealing with child and spousal support as well as parenting time. The court may use the Friend of the Court for other miscellaneous duties, including a recommendation on property distribution.
After the complaint and summons are filed and served, the defendant may file an answer to the complaint, which is a paragraph-by-paragraph response to the complaint. Once the answer is filed, the case is contested. If no answer is filed by the defendant, an order of default is entered, indicating the defendant's lack of response. The matter becomes an uncontested divorce case. If the case is contested, the defendant may not only answer the complaint, but also file his or her own counterclaim. This counterclaim must be answered by the plaintiff.
Timing
A divorce cannot be granted in less than 60 days. When there are minor children, the parties must wait six months. However, the six-month period may be waived under certain circumstances. No divorce is granted without a court hearing to determine the truth of statements made in the complaint.
Temporary Orders While Your Case is Pending
Temporary orders for custody, child and spousal support, mortgage payments, medical payments, parenting time, injunctions, and other relief may be requested at any time after your case is started and before a judgment of divorce is entered. A temporary injunction can restrain a party from doing something. There are two types of injunctions to deal with violence: one authorizes immediate arrest (criminal); the other provides for an appearance before the judge to determine what action should be taken (civil). There is also an injunction restraining a party from selling, disposing of, or dissipating assets. Other types of injunctions may be requested. Child support, custody, mutual injunctions, and personal protection orders are usually granted to the plaintiff without a hearing.
Temporary orders for child support are usually based on a state-recommended chart. Generally, spousal and child support is based on need and ability to pay. The lifestyles of the parties are also taken into consideration. For child custody disputes, you will be advised to study the 11 specific factors listed in the Child Custody Act (see Child Custody below). The procedures and preparations for such a case are too involved for this discussion and must be left to further discussions with your attorney.
The court may also award temporary fees to assist a party with his or her costs of obtaining legal services. This is usually obtained in the same way as any other motion. Sometimes it may be part of a motion requesting other relief.
Working Towards Settlement
While your case is pending, your attorney will be defining the issues and trying to resolve them. Your attorney will also attempt to find the net worth of the parties and the general financial status of the family. A verified financial statement or interrogatories may be sent out requiring answers from the recipient under oath. Complete financial data is usually requested. Depositions may be taken (with consent of the client) to obtain further information from the other spouse or from those that have the needed information. Appraisers, actuaries (if pensions are involved), accountants, or behavioral professionals may be used (with the client's prior consent). You and your attorney, after the discovery work has been completed, will set final goals you wish to obtain. This will not be done hastily, and you will be given an opportunity to study the proposed settlement. Your attorney will advise you on the likelihood of acceptance of your proposals or what a court may do.
The attorneys may call a meeting, with both parties present, and try to resolve as many issues as possible. This is a voluntary process. Either party may decline to attend.
If settlement is reached, the parties will be asked to sign a property settlement form containing all the provisions of the settlement. The parties may be required to approve the settlement in court, before the judge, after it is placed on the record.
Judgment
The judgment of divorce is the most important document you will receive. After a settlement is reached and/or the case is tried, the judgment of divorce will be entered by the court as your final decree granting you a divorce. It will also contain clauses dealing with such issues as spousal support, custody, child support, parenting time, insurance, dower rights, property settlement, and other miscellaneous clauses. If a settlement has been reached, you must carefully read and examine this judgment and have your attorney explain it to you before you approve it.
Spousal Support
Spousal support, also called alimony, is a sum of money usually paid by one spouse to another spouse for the support and maintenance of the spouse. The factors considered by the court in awarding spousal support are as follows:
- Past relations and conduct of the parties (fault)
- Length of the marriage
- Ability of the parties to work and their respective incomes
- Source and amount of property awarded to the parties
- Ability of the parties to pay spousal support
- Present situation of the parties
- Needs of the parties
- Health of the parties
- Prior standard of living of the parties and whether either is responsible for the support of others
- Age and educational level of the person claiming spousal support
Generally, judgments of divorce in which spousal support is not granted must either expressly reserve the question of spousal support or rule that neither party is entitled to spousal support.
Regular or periodic spousal support or rule that neither party is entitled to spousal support. Regular or periodic spousal support clauses in the judgment of divorce of divorce ore modifiable at any time. When limitations are placed in the judgment regarding modification, it is questionable whether or not these limitations will be honored b the court. Spousal support may be increased, decreased, or canceled. A modification is based on a showing of a change in circumstances that warrants the modification.
Regular or periodic spousal support is usually taxable to the recipient and is deductible by the payer. The phrase "payment until death" must be part of the spousal support clause in order for it to be considered as taxable spousal support. This type of spousal support is not dischargeable in bankruptcy. Qualifying clauses such as "payable until remarriage" may be included.
Spousal support is usually paid through the office of the Friend of the Court. This enables a party to obtain an accurate record of these payments. Also, it makes it easier to request assistance from the Friend of the Court in the event that payments are not forthcoming or a spouse denies receiving payments.
The enforcement of regular or periodic spousal support payments is usually instituted by an order to show cause. The procedure will be explained to you by your attorney upon request.
Child Support
The custodial parent is entitled to claim the minor children as dependents for all tax purposes. The parties may agree that the noncustodial parent shall have this allowance and enter this agreement into the judgment. If the noncustodial parent is entitled to the allowance by the judgment, that parent must obtain each year, from the custodial parent, a signed Form 8332, which must be filed with the noncustodial parent's other federal income tax forms. Only the parent taking the dependency exemption is entitled to claim the child tax credit and the interest deduction and tax credits for post-secondary education.
Child support is modifiable on the same basis as spousal support. This support is usually ordered until the child attains the age of 18 years, or graduates from high school, so long as the child has not yet reached 19 years and 6 months and regularly attends high school on a full-time basis with a reasonable expectation of completing sufficient credits to graduate from high school while residing on a full-time basis with the payee of support or at an institution. Enforcement of payments is the same as for spousal support.
Child support is based on a strict formula which considers the income of both the custodial and non-custodial parent. Nonpayment of court-ordered support may lead to a contempt of court citation, resulting in a jail term or a suspension of the delinquent parent's occupational or driver's license.
Every child support order paid through the Friend of the Court now provides for the immediate and automatic withholding of child support payments from any source of the payer's income, unless the court orders otherwise or approves an agreement by the parties.
Child Custody
This issue is the most emotional and traumatic part of most divorce cases. There is legal custody, i.e., the decision-making part of raising the child; and physical custody, i.e., who physically raises the child. The courts favor joint legal custody so that each parent has an equal voice in making important decisions relating to the child such as medical, educational, religion, etc. There is also sole custody or joint custody under each of these headings. The basis for determining child custody is "the best interests of the child." Due to the extensive nature of custody disputes and the laws involved, this subject is best left to an in-depth discussion with your attorney.
A party involved in a child custody matter should become acquainted with the Child Custody Act and study and be prepared to discuss the following factors:
- The love, affection, and other emotional ties existing between the parties involved and the child.
- The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the education and raising of the child in his or her religion or creed, if any.
- 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.
- The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
- The permanence, as a family unit, of the existing or proposed custodial home or homes.
- The moral fitness of the parties involved.
- The mental and physical health of the parties involved.
- The home, school, and community record of the child.
- The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
- The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
- Domestic violence, whether or not it occurred in the child's presence.
- Any other factor considered by the court to be relevant to a particular child custody dispute.
When there are custody disputes, the parents must be advised as to joint custody:
- At the request
of either parent, the court shall consider an award of joint custody
and shall state why joint custody may or may not be considered by the
court. The court shall determine whether joint custody is in the best
interest of the child by considering the following factors:
- The factors enumerated above.
- Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.
- If the parents agree on joint custody, the court shall award joint custody unless the court determines on the record that clear and convincing evidence affecting the welfare of the child dictates otherwise.
- If the court awards joint custody, the court may include in its award a statement regarding when the child shall reside with each parent or may provide that physical custody be shared by the parents in a manner to assure the child continuing contact with both parents.
- During the time the child resides with a parent, that parent shall decide all routine matters concerning the child.
- If there is a dispute regarding residence, the court shall state on the record, in writing, the basis for a residency award.
- Joint custody shall not eliminate the responsibility for child support. Each parent shall be responsible for child support based on the needs of the child and the actual resources of each parent. If a parent would otherwise be unable to maintain adequate housing for the child and the other parent has sufficient resources, the court may order modified support payments for a portion of housing expenses, even during a period when the child is not residing in the home of the parent receiving support. An order of joint custody, in and of itself, shall not constitute grounds for modifying a support order.
- As used in this
section, "joint custody" means an order of the court in which
one or both of the following is specified:
- That the child shall reside alternately for specific periods with each of the parents.
- That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.
Child custody orders are modifiable. The court will consider the time the child has lived in a stable custodial environment and what is in the best interest of the child. It should be remembered that the child's preference, though an important factor, is just one factor to be considered in the 11 specific child custody factors cited above.
Parenting Time
Parenting time is generally granted to the noncustodial parent. The judgment may order general parenting time, leaving it up to the parties to decide the dates, or it may provide specific parenting time hours and dates. If long distances must be traveled to exercise this parenting time, arrangements can be made to share the cost. Parenting time rights may be enforced in the same manner as rights to spousal support. Judgments of divorce provide that the minor child may not be permanently removed from the jurisdiction of the court without the court's approval. To move with the child from Michigan, the custodial parent must petition the court for an order. Parenting time orders may be modified on a showing of a change in circumstances. If parenting time has been wrongfully denied, the law allows this time to be made up and permits a contempt of court action to be brought against the offending parent that can lead to a fine or jail term. Failure to pay child support is not an acceptable reason to deny parenting time.
Property
The parties usually arrive at a settlement of all their property rights after negotiation. If settlement is not reached, the matter will be decided by the court after the trial is concluded. Again, you are advised that you must be absolutely sure that you understand and accept the settlement as written or placed on the record in open court, because property settlements may not be modified, except in cases of fraud, clerical error, mistake, or gross unfairness in the initial trial. If your property includes retirement or pension plans, your attorney, upon request, will explain your rights under the qualified domestic relations order procedures.
Property settlements in judgments may be enforced by execution, garnishment, show cause proceedings, etc. Your attorney will explain these procedures to you upon request.
In determining property issues, the court will usually consider the following:
- Length of the marriage
- Contributions of the parties to the marital estate
- Age of the parties
- Health of the parties
- Life status of the parties
- Necessities and circumstances of the parties
- Earning abilities of the parties
- Past relations and conduct of the parties
- General principles of equity
Generally, the property of the marriage is divided 50-50.
Pre-Divorce Financial Planning Recommendations for the Secondary or Non-Wage Earner
It is common to ignore the danger signs in a marital relationship. Nobody likes to think that their marriage is in danger of dissolving. Facing reality and planning ahead, however, can avoid unnecessary stress. Following are some financial planning recommendations which, although not pertinent to every situation, generally have proven helpful to the secondary or non-wage earner.
- Review all mail which comes into the marital residence and make a list of the sender and the return address. It is particularly important to obtain the addresses of brokerage houses, insurance companies, credit card issuers, banks, etc.
- Remain "in touch" with the personal finances of the marriage. Review all monthly bank statements and brokerage statements and try to make copies. Give copies of all necessary documents to your attorney to hold for safekeeping.
- Review all tax returns and seek complete explanations as to any item which may be questioned before signing. Make copies of the tax returns (including any and all schedules).
- Inventory and periodically review the contents of any safe deposit box. List the contents (including cash and jewelry) and make sure that the safe deposit box is in joint names.
- Familiarize yourself with your spouse's business. When tax returns are being prepared, go with your spouse to the accountant so that you don't get secondhand (filtered)information later.
- Do not make major purchases (such as boat or expensive car) or allow your spouse to make major purchases for himself/herself or on your behalf. Keep the assets of your marriage liquid and unencumbered. Don't purchase that summer home or Mercedes with the thought (hope) that it will patch up the differences between you and your spouse. Patch up the marriage first, then make purchases later.
- Do not transfer, assign, alienate or make a gift (even to the children) of any marital asset. Maintain all assets in joint names (or your name alone,if possible).
- If your spouse has a pension plan with his/her employer determine when his/her pension "vests". It may be important to be married at the time the pension vests to ensure that you will be entitled to your fair share of that asset under Michigan law. Obtain copies of the pension and/or profit sharing plan and any yearly statements.
- Obtain copies of any will or trust documents. Go with your spouse to his/her attorney and directly participate in any estate planning.
- Review and make copies of all loan documents, mortgage applications and financial statements.
- Do nt sign any documents or financial instruments in blank. Know what you are signing, keep copies and don't rely on your spouse to fill in the blanks later.
- Have a complete medical and dental checkup. Familiarize yourself with your spouse's medical and dental plans. Make certain that you have needed medical and dental treatment prior to separation and that you are covered with medical insurance in the event of separation.
- For purposes of receiving any Social Security benefits to which you may be entitled when your spouse retires, make certain that you are married for at least ten years. Don't separate prior to this time (or at least avoid being divorced prior to this time) if at all possible.
- Learn where you can cut costs in the event of a separation because of the limitation of income which you may subsequently suffer. Open your own safe deposit box at another bank (other than where your spouse and you may have an existing box) to store any important papers and valuables. You also may wish to open up a post office box to receive personal letters from your attorney or others.
- Separation generally causes immediate economic hardship. Therefore, put away as much cash as you can. You will need to retain an attorney and also will have particular personal needs which your spouse may not want to pay for. Therefore, from weekly moneys which you receive from your spouse to buy groceries, allowance or from your job, "separate" as much as you can. Keeping money in travelers checks may be a viable alternative to cash.
- Make certain your automobile is in good working condition and that it is titled in your name or jointly (not in your spouse's name alone). You will need to be mobile in order to see your attorney, go to the supermarket, go to work or out with the children.
- Review and make copies of any and all insurance policies relating to the marital residence, furnishings or other assets, including any riders for jewelry, silverware or other valuables.
- Don't create any additional indebtedness and don't allow your spouse to do so either.
- Develop your own lines of credit. Obtain credit cards in your own name.
- Keep all inheritances separate form your spouse. If an inheritance is received, don't place it in joint names.
- Make certain that all taxes owed to the federal government and any other taxing authorities have been paid.
- If your spouse is about to make a job change or be elevated to another position, don't leave. Consider the fact that your spouse may have an enhanced earning capacity which could result in greater support for you (and the children) later on.
- Don't quit work if you are working. It is important to have a sense of financial independence as well as the emotional security of having a place to go every day.
- Obtain most recent financial statements given by you and your spouse or your spouse to a lending institution for the purpose of obtaining a loan or line of credit (This usually lists all assets and liabilities.
Pre-Divorce Financial Planning for the Larger or Primary Wage Earner
Following is a list of financial planning recommendations for the larger wage earner in the family. Although not pertinent to every situation, these suggestions generally have proven helpful to those contemplating divorce.
- Keep the marital assets liquid and avoid encumbering marital property or making large purchases.
- Become familiar with all the expenses associated with maintaining the marital residence and the related needs of your spouse and children. You must know where you can trim the excess from personal and household expenses since you may have to maintain a separate residence for yourself along with the marital residence.
- Have all important mail sent to your place of business.
- Keep all assets in your name alone rather than in joint names in order to give you more complete control over their disposition. Refuse to cooperate with your spouse in helping him/her establish credit in his/her own name in order to avoid liability for those expenses incurred by him/her and for his/her sole benefit prior to divorce.
- Determine when your pension vests and attempt to terminate the marriage prior to vesting.
- Postpone bonuses and defer income until after the divorce in order to reduce your potential liability for alimony and/or support.
- Do not separate or file for divorce until after you have secured your spouse's signature on your joint income tax returns. Otherwise, your spouse may attempt to hold his/her signature "hostage" for the payment of cash or other benefit with the inducement that you will save taxes by filing a joint return.
Attorney Fees
An hourly rate will be quoted to you by your attorney. You will also be responsible for disbursements made on your behalf by your attorney for such items as court costs, filing fees, service of pleadings, appraisals, expert witness fees, etc. You will be charged for consultations, correspondence, phone calls, office and research work, court time, filing, and hearings.
In the event your spouse is ordered to contribute to your attorney's fees, you will be given credit for the amount your spouse pays.
Conclusion
Many divorce cases end in a reconciliation of the parties. If there is a chance to save your marriage, we will be pleased to recommend marriage counselors to you and assist you in every possible way to effect reconciliation. If, on the other hand, you believe the marriage is over, we will do our utmost to obtain a judgment of divorce that is satisfactory to you.
We are aware of the pressures and the personal difficulties faced by a person involved in the divorce process. We will attempt to ease these pressures and work toward eliminating the cause and effect of these problems. If you have any questions, please do not hesitate to call or arrange for an appointment.
HOME • FIRM OVERVIEW • DIVORCE INFORMATION • LINKS • OFFICES & DIRECTIONS
