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Divorce:

Divorce is the common way of legally ending a divorce.  Even if parties agree on everything, one of them must file a divorce lawsuit as a plaintiff against the other spouse as a defendant.  If they cannot agree the court decides how to divide their property, and if there are children, the court decides who gets custody, visitation, and child support.

Alimony:

A spouse may be made to make monthly payments to the other. Whether alimony is awarded, the amount, and for how long depends on several factors; most important, the length of the marriage, each spouse’s income, and the requesting spouse’s need.  Courts like to avoid an impoverished divorcee. But, for better or worse, the trend is to avoid lifetime dependency of an ex-spouse on the other.

Property Division:

The couple’s assets and debts will be divided in a divorce.  The assumption is often that marital property should be divided on a 50-50 basis.  If a spouse has “separate” property or debt on the other hand, it will remain with her.  “Separate” usually means property or debt acquired before the marriage.

Pre-Nuptial Agreements:

Michigan’s trend is to honor and uphold couple’s written agreements about how their property will be divided upon divorce.  Similarly, couples may enter into such agreements during the marriage.  The goal is usually to avoid hostile litigation.  Some couples want to strike a written agreement after deciding to divorce but before filing.  Lawyer’s typically avoid representing both parties.  Ideally both parties have attorneys who advise them or negotiate the terms of the agreement.  The lawyer who drafts the agreement wants to make it clear and enforceable.  Enforceability often depends upon full disclosure of assets and debts by each party as well as each party understanding his/her rights.

Child Relocation:

If a parent wants to move a child out of the geographical area he or she may have to meet the requirements of the “Hundred Mile Rule“.  That law generally applies if the parents have joint legal custody and already live within 100 miles of each other.  There are several factors a court must consider.

Child Custody:

Child custody is decided in divorces with minor children, and in paternity cases and any other litigation concerning children.  In deciding who gets custody the court must evaluate both parents under the factors listed in the Child Custody Act.  Here are those factors with suggested questions for each one:

    1. The love, affection, and other emotional ties existing between the parties involved and the child.
      • Who does meal preparation.
      • To whom is child bonded and how strong is the bond.
      • When child has a problem, to whom does he/she speak
      • Hours each party spends with the child on a daily basis
      • Parent’s ability to separate child’s needs from his/her own: empathy with child.

       

    2. 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.
      • Who has been the primary caretaker of the child
      • Who attends to special needs of the child
      • Who bathes and dresses the child
      • Who stays home from work when child is sick
      • Who has sufficient knowledge to meet the needs of the child
      • Who takes responsibility for involvement in extracurricular activities
      • Who disciplines child; who uses preferable discipline techniques
      • Who has a history of verbal abuse, substance abuse, or an arrest record
      • Who has ability to provide the child access to extended family

       

    3. 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.
      • Who buys things the child needs?
      • Who has greater earning capacity.
      • Who adjusts working hours based on the child’s needs?
      • Who has certainty of future income
      • Who has ability to provide insurance for child
      • Who attends classes for professional improvement
      • Note that this factor is rarely decisive, since the court can adjust income differences with a child support order.

 

    1. The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

 

    1. The permanence, as a family unit, of the existing or proposed custodial home or homes.
      • Who has the more intact, stable family for a child to live?

 

  1. The moral fitness of the parties involved.
    • Who has an unacknowledged or unaddressed drinking problem?
    • Who has a criminal record
    • Physical or sexual abuse of the child, or any child
    • Other illegal or offensive behaviors

     

  2. The mental and physical health of the parties involved.
    • Physical or mental health problem that significantly interfere with ability to protect the child’s health and well being.
    • Age of parent compared to age of child.  Would energies of child overwhelm a parent?

     

  3. The home, school, and community record of the child.
    • Who has provided leadership in school attendance and performance?
    • Who has provided leadership in extracurricular activities?
    • Who is actively involved in school conferences, transportation and attendance at school events?
    • Who can reduce the need for outside agency involvement—like Child Protective Services or Juvenile court—or if there is such involvement, who can cooperate more fully?
    • Who can plan the child’s access to friends and peers helpful for the child’s development?
    • Who can best plan and supervise the child’s taking on home responsibilities appropriate to child’s age and circumstances.

     

  4. The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
    • This factor may be given strong consideration, based on a rational, unbiased, child in an interview.  The age, maturity, reasoning, existence of external pressure, and previous “flip-flopping” in preferences are all important.

     

  5. 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.
    • Who can best cooperate with an appropriate visitation schedule by the other party
    • Who is least likely to disparage the other parent in the presence of the child?

     

  6. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
    • Have there been acts of violence in the home by any party against anyone.  Has there been a police report, arrest or conviction?  Has there been a pattern of violence, whether reported or not reported?

     

  7. Any other factor considered by the court to be relevant to a particular child custody dispute.
    • Excessive time involved in traveling for child
    • Record of failure to exercise visitation; failure to notify of important events in a child’s life; failure to return a child.
    • Are there other children, whether a part of the litigation or not, whose custody is important to the child’s best interests. (E.g., preference for keeping siblings, half-siblings, or step-siblings together.)
    • Are there new spouses or significant others whose relationship with the children  affects their best interests?

     

Visitation:

Child visitation is now called by “parenting time” in Michigan. When custody is decided there is also a decision on a visitation.  When parties have joint physical custody, the most familiar schedule to me is week-on-week-off, but I have seen many variations, and the possibilities are many. Courts and parents try to avoid multiple disruptive exchanges of children during short periods. On the other hand, they usually try to avoid long periods of not seeing a parent.  Parenting time also covers issues like the place for exchanging children, choice of care providers, and choice of schooling.

Child Support:

In Michigan courts must follow the Michigan Child Support Formula. This is a complex formula which produces a monthly sum one parent pays the other.  The income of each parent and the amount of time the children spend with each are the main factors.  Generally, if you pay child support the higher your income the higher the amount, if you receive it, it will be lower.

Paternity:

A biological father has no legal rights or obligations unless he has legal status as the father.   A child born during a marriage is assumed to be the husband’s child.  If there is no marriage and the father is present at the birth, he and the mother usually sign an “Affidavit of Parentage,” which establishes his legal rights.  This form can also be signed after the child is born.  If the mother or proposed father don’t agree on his paternity, a paternity case can be filed by either parent, and the father will take a DNA test to resolve the question.

Annulments and Separation Agreements:

In addition to divorces, marriages can be ended by an annulments.  The difference is that if the person bringing the annulment suit is successful, the marriage will be declared to never have happened.  Basically, the plaintiff must claim he/she was defrauded into the marriage.  Separation agreements are much like pre-nuptial agreements (see above).

Domestic Violence and Personal Protection Orders (PPOs):

Courts grant personal protection orders when a person reasonably fears bodily harm from someone.  PPOs may also be granted for stalking or harassing behavior.  PPOs forbid contact by the perpetrator, either totally or partially.  They are entered into the Law Enforcement Information Network, to which police have ready access.