Divorce cases are often difficult and emotionally difficult and draining for all parties involved. It is important to have an experienced and qualified divorce attorney who is sensitive to your needs, and who can formulate a plan to protect your rights and assets. At Canu, Torrice, PLLC, our attorneys are sensitive to your needs, but will aggressively protect your rights, property and children from an unreasonable spouse.
“No Fault” Divorce
Michigan has enacted a no fault divorce law, pursuant to which residents of Michigan can obtain a divorce without establishing that the other party did something wrong. A trial court can grant a divorce if it finds that “There has been a breakdown in 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.” Although issues of “fault” may remain relevant to the division of the marital estate, and that aspects of “fault” may come out in the event of child custody litigation.
Jurisdictional Requirements
To file for divorce in Michigan, the plaintiff must have been a resident of Michigan for at least 180 days, and must have resided in the county where the divorce complaint was filed for at least ten days prior to filing.
If the other spouse resides in another state, the Michigan court will be able to grant a valid divorce, but may be limited in its ability to divide property or determine custody and child support. However, it is possible for a spouse who lives in another state to consent to having all divorce-related issues decided by the Michigan court.
If you are concerned that your spouse may be filing for divorce in another state or jurisdiction, you should consult with one of our attorneys about whether it would be appropriate for you to try to file a divorce in your own state. In many circumstances, the divorce will be decided in the state where a complaint for divorce is first filed, which can result in significant difficulty and expense to a spouse who resides in another state.
Waiting Period
Under normal circumstances, a trial court in Michigan must observe a sixty day “cooling off” period before granting a divorce. While it is possible for a trial court to find circumstances which justify waiving this period, in most cases the full waiting period will be observed. The waiting period is longer in cases involving child custody.
When “Fault” Matters
A trial court may consider “fault” issues when dividing the marital assets, or when assessing spousal support (alimony). Please note that under most “fault” circumstances, the trial court will not dramatically change the division of assets. With most marital estates, you will need to consider whether a five or ten percent difference in the property division justifies the expense and conflict associated with attempting to prove fault. There is often a better financial return in making sure that all assets are located, properly valued, and included in the marital estate, as opposed to trying to prove fault.
Please note that while the five or ten percent difference is most typical, in extreme cases courts have been known to award larger amounts, and on at least one occasion even the entire marital estate, to the wronged spouse. Our attorneys can help you make the assessment of what is likely to happen in your case, and whether you would benefit from trying to make fault an issue.
Division of Property
The first consideration for a court in evaluating the division of the marital estate is the determination of which portions of the estate constitute the parties’ separate property, and which is part of the marital estate. By way of example, inheritances are usually considered to be the separate property of the spouse who received the inheritance. Similarly, a business or asset owned prior to the marriage may be considered to be a separate asset, depending upon how it was treated during the marriage. At times, an item of property might be deemed to be “separate property”, while the appreciation or interest earned by the asset is considered to be a marital asset. At other times, a parties separate property at the onset of the marriage may be deemed to have merged into the marital estate. Also, a trial court may invade one spouse’s separate property when necessary to provide for the adequate post-divorce support of the other spouse.
Factors to be considered by the trial court when dividing the marital estate include:
- The parties’ past relations and conduct;
- The duration of the marriage;
- The source of property;
- The parties’ contribution towards its acquisition;
- The needs of the parties;
- The parties’ earning ability;
- The cause for divorce;
- The age of the parties;
- The parties’ health;
- The parties’ life status;
- Necessities and circumstances of the parties;
- General principles of equity (fairness); and
- Additional factors deemed relevant to a particular case.
Spousal Support / Alimony
An award of spousal support is ordinarily made within the context of the division of the parties’ property and assets. Under appropriate circumstances, a trial court may provide for temporary spousal support while a divorce case is pending, or may order support to be paid retroactive to the date the complaint for divorce was filed. A spousal support award may take into consideration the amount of marital estate, and whether one of the spouses will have to liquidate assets awarded in the divorce in order to maintain a reasonable lifestyle. Where one spouse has sufficient income to preserve his or her share of the property settlement and the other does not, spousal support may be appropriate.
Spousal support is usually awarded either in the form of periodic payments or “in gross” (in a lump sum). Periodic payments are usually described as “rehabilitative” (short-term payments to help the recipient spouse get back on his or her feet), or permanent (ordinarily lasting until death, remarriage, or further order of the court). Awards of periodic alimony are normally subject to subsequent modification by the court, whereas awards of alimony in gross ordinarily cannot be modified after judgment.
Factors to be considered by a trial court in awarding spousal support include:
- Past relations and conduct of parties;
- Length of the marriage;
- Age of the parties;
- Ability to work;
- Present situation of parties;
- Needs of the parties;
- Health of the parties;
- Ability to pay alimony;
- Source and amount of property awarded the parties;
- Prior standard of living of the parties and whether either is responsible for the support of others; and
- General principles of equity (fairness)
There are at least two sets of unofficial spousal support guidelines available in Michigan. Courts will usually entertain calculations made under the guidelines, but the guidelines are not binding on the court.
Bankruptcy and Divorce
If there is a possibility that one or both spouses will file for bankruptcy after the divorce, an attorney must take particular care to structure the property division and support award so as to protect the client spouse from the effects of the other spouse’s bankruptcy. If either spouse has filed or is considering the filing of a bankruptcy, you should contact our office for a joint consultation with our bankruptcy and divorce attorneys to being advised of your rights and the possible effect on your case.
Child Custody
The “Best Interest Factors”
When evaluating child custody, under Michigan law courts are required to evaluate the “best interest” factors, a series of considerations which are meant to help the court determine the most appropriate custodial environment for a child. Those factors include:
(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.
Please note that, while a court will make specific findings under each “best interest” factor when rendering a custody decision, the court’s findings are not tallied up like a baseball score. It may be that one party “wins” under most of the factors, but that custody is awarded to the other party on the basis of a factor the trial court considers to be more important under the circumstances. For example, a judge may be sufficiently concerned about a parent who appears to wish to alienate the child from the other parent, that custody will be awarded to the other parent under a strong “factor j” finding, despite the many good qualities of the first parent. Similarly, “factor b” and “factor c” findings may be given considerable weight by a court, if a parent appears unwilling or unable to provide appropriate guidance or support.
The issue of “morality” relates to the effect of the parent’s moral choices on the children. It is not intended to include an evaluation of a parent’s character outside of the context of the best interests of the children, and the ability of the parent to provide appropriate moral guidance to the children. A parent’s involvement in a new romantic relationship following divorce or separation is not the type of “moral conduct” which would ordinarily concern a court.
Modification of Custody
Once a trial court has entered a custody order, the trial court is not supposed to revisit that order unless the party requesting modification can establish a “change of circumstances” sufficient to reopen the prior custody decision. The idea behind this rule is that minor children need stability in their lives, and thus that modification of custody is not appropriate if there has been no significant change in their existing custodial environment. A lawyer can help you evaluate if there have been sufficient changes to warrant an effort to change or modify custody.
Interstate Custody Issues
Interstate custody disputes typically arise when a parent who lives with the children in Michigan files for divorce in a Michigan court, or when a parent who was divorced in a different state seeks to modify that state’s child custody judgment in a Michigan court. In the first circumstance, a Michigan court will be able to grant a divorce and issue a custody order, but may be restricted in its ability to divide marital assets or to award child support without the other parent’s consent to its jurisdiction. In the second circumstance, there are some relatively complicated rules which are meant to protect the jurisdiction of the court which issued the original custody order, which may prevent a Michigan court from modifying that order. If there are interstate issues in your custody case, due to the complications that can result, it is a good idea to consult with a lawyer about their impact on your case.
Calculation of Child Support
Child support is ordinarily calculated in accord with the Michigan Child Support Formula. This calculation is formulaic, and except in high income cases does not leave much room for advocacy. Child support is ordinarily payable until a child reaches the age of eighteen, or until the age of 19-1/2 if the child is still a full-time high school student. Please note that the parties can agree to additional support provisions on a contractual basis, for example if they wish to provide for their children’s college education as part of the divorce agreement, or if they have a disabled child whom they know will require support well past the age of majority.
If you are paying or receiving child support, and your financial circumstances change, you may ask the court to modify the amount of child support payable in your case. Please note that under normal circumstances a court will be unable to modify support “retroactively” – that is, any change will ordinarily take effect as of the date of your petition for a modification. It is thus important that you present any challenge to excessive or inadequate support as soon as the changed circumstances come to your attention.
Joint Custody
There are two types of “joint custody” in Michigan – “joint legal custody”, under which parents share decision-making responsibility in relation to important life decisions affecting the child, and “joint physical custody”, which usually involves a more equal parenting time arrangement and shared responsibility for the day-to-day care of the child. A Michigan court must consider joint custody if asked to do so by either parent. Most custody cases result in an award of joint legal custody. Joint physical custody works best when the parents have a strong relationship and ability to communicate in relation to their minor children, despite the circumstances of their divorce.
Moving After a Custody Order
Custodial parents who are subject to a Michigan custody order are expected to seek permission from the trial court before relocating the children to another state. Where the parents with either joint physical or joint legal custody live within 100 miles of each other at the time of the initial custody order, either parent must petition the court before they move beyond that 100 mile limit
