DIVORCE LAW

 Divorce cases can consist of a lot of intertwined areas and functions including: 

  • Divorce

  • Property division

  • Child custody

  • Parenting time

  • Child support

  • Spousal support (alimony)

  • Paternity

  • Co-habitation

  • Domestic Relation Orders (QDRO's and EDRO’s)

  • Mediation

  • Arbitration

  • Litigation

  • Friend of the court including investigations, evidentiary hearings, etc

  • Pre-Nuptial agreements

  • Post-nuptial agreements

  • Annulments

  • Separate maintenance

  • Interstate custody and support jurisdiction 

Feel free to contact us for a free phone consultation. Attorney Matt Michaels has a wealth of experience with divorce law.

UNBUNDLED LEGAL SERVICES

Divorce case legal expenses can sometimes be kept down  by using "limited scope legal representation" (unbundled legal services).  >Click to learn about unbundled services 

GROUNDS FOR DIVORCE

Confusion exists regarding Michigan’s status as a “no fault” divorce state. Generally, when persons claim that Michigan is a “no fault” divorce state they mean that the only ground for divorce that a court must find to divorce people is “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.” So when filing a complaint for divorce one does not have to specify any fault by either party. And if the parties consent to a judgment, the court is highly unlikely to ask the reason for the divorce. On the other hand, ‘fault” which contributed to the martial breakdown is one of several factors that a court considers when determining custody, parenting time, spousal support, and property division percentages.

SPOUSAL SUPPORT FACTORS

Spousal support (alimony) is a sum of money paid by one spouse to the other spouse for the support and maintenance during case pendency and/or post judgement. Although some courts consider spousal support calculations performed with purchased software, the law requires the court to consider “the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.” MCL 552.23(1). Factors considered include at least the following:

  • the past relations and conduct of the parties (fault)

  • the length of the marriage

  • the ability of the parties to work and their respective incomes

  • the source and amount of property awarded to the parties

  • the ability of the parties to pay spousal support

  • the present situation of the parties

  • the needs of the parties

  • the health of the parties

  • the prior standard of living of the parties and whether either is responsible for the support of others

  • the age and educational level of the person claiming spousal support 

There are various circumstances causing spousal support duration and/or amount to be “permanent,” modifiable, non-modifiable, rehabilitative, or lump-sum. Spousal support awards can vary widely between courts, judges, and cases. 

CHILD SUPPORT

Unlike spousal support, child support is based on the Michigan Child Support Formula Manual (the “Guidelines”). It is a formula which considers multiple factual parameters including but not limited to party incomes and number of overnights the child(ren) stay with each party. Your family law attorney can estimate your child support with a good level of certainty based on input parameters of the case. 

CHILD CUSTODY AND PARENTING TIME FACTORS

The Michigan Child Custody Act demands the following “best interests of the child” factors be considered by the court when determining child custody and parenting time: 

  • 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 its 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 the 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 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, regardless of whether the violence was directed against or witnessed by the child.

  • Any other factor considered by the court to be relevant to a particular child custody dispute.

PROPERTY DIVISION FACTORS

Property division in a divorce case can include everything that is “co-mingled marital property.” One can typically expect a division of real property, personal property, accounts, pensions, IRAs, etc., which were acquired and/or consequentially commingled during the course of the marriage. It is common for family law practitioners and courts to start with a presumption of a 50-50 property division and then move from there when needed via negotiation, mediation, or litigation. The following factors are considered when determining property division issues: 

  • the length of the marriage

  • the contributions of the parties to the marital estate

  • the ages of the parties

  • the health of the parties

  • the life status of the parties

  • the necessities and circumstances of the parties

  • the earning abilities of the parties

  • the past relations and conduct of the parties

  • general principles of equity 

SOME PRACTICAL FAMILY LAW ISSUES

"I am expecting divorce, what are my rights?"

"Spouses beginning a divorce sometimes ask, “what are my rights.” Often, they are actually asking what they can legally do before or after the complaint for divorce is filed, but before entry of final judgment. In other words, what are spouses allowed to do during case pendency? Some compelling issues during case pendency can be (1) parenting time (especially if the parties are separated) and (2) interim issues regarding money, accounts, and personal property division.

It is not uncommon for “interim orders” to be entered during case pendency. And of course, everybody must obey all orders signed by a judge. For example, sometimes the court issues an interim order to maintain the “status quo” with respect to bill payments, paycheck deposits, medical insurance coverage, prohibitions against waste, and prohibitions against changes to beneficiaries on accounts and insurance policies.

The short answer to the initial question is that unless there is a court order stating otherwise either spouse may typically continue to do anything legal that they could have done if they were not expecting divorce. But just because a party might be able to legally empty out a joint bank account or unilaterally take the children on vacation to Timbuktu doesn’t mean it would necessarily be a good idea. You see, during the divorce process the court could order the return of funds or reverse a spouse’s acts with respect to the children. In Michigan, the Family Court is a division of the Circuit Court. And a Circuit Court judge has wide authority to make decisions during case pendency and in a final judgment that the court thinks are “fair and equitable.”

Like so many issues in the law business, the answer is not black and white. Divorcing spouses need to be informed of the risks and benefits of their actions prior to the filing a complaint and during case pendency. The circumstances of each situation must be considered before deciding what to do on a case-by-case basis. For example, a spouse might legitimately fear that his or her spouse will empty a joint bank account and squander the money. If the account is joint between the spouses, and if there are no court orders stating otherwise, either spouse could legally take joint account money and do whatever they want with it. But they would be risking the court might later demand an equitable return of the money. In some cases, it might be wise for a spouse to escrow money until a decision is made by the court. In other cases, it might be wise for a spouse to take half or more of the money from a joint account to pay necessary marital bills. Only spouses can make these decisions after weighing the risks and potential benefits.

Divorce and marital agreements:

Prenuptial agreements are made between parties prior to marriage. Postnuptial agreements are made after marriage. Each is made in order to specify how property will be divided upon any future divorce. The law for each is similar - but not the same. Because they can be legally tricky and interpreted with nuance, I highly recommend attorney drafted documents for these things.

Assume a party has been married for a while and then agrees to draft a postnuptial agreement. Maybe one party inherited some money and wants to protect it from becoming a "comingled" marital asset. Or maybe the parties have separate careers and have grown accustomed to separate financial lives. Conversely, a stay-at-home mom might want assurance that she will not become a bag lady left with a gaggle of kids if her husband turns 40-something and starts wandering outside the marriage…

Among other things, postnuptial agreements are contracts that must not be made in contemplation of divorce, must be fair and equitable, and must contain “consideration”. The legal element of “consideration” is often misunderstood or overlooked in postnuptial agreements.Consideration means that both sides must get something of value (or be denied some legal right) or else the contract is void. In other words, both parties must be bound by the contract or neither is bound. A person drafting their own postnuptial agreement might give himself or herself a fixed share of assets upon divorce but forget to give their spouse anything. And that would end up being held to be a void contract for lack of sufficient consideration.

I wrote a winning legal brief on the subject and assure you that postnuptial agreements can be thrown out in court if they lack consideration! That is good if you are in a position like my client was, but not good if you were the one relying on a poorly drafted marital agreement. Stop Worrying, Contact Us.