- THE DECISION TO DIVORCE
- “NO-FAULT” DIVORCE
- PROPERTY DIVISION
- ALIMONY (SPOUSAL SUPPORT)
- CHILD CUSTODY
- PARENTING TIME
- CHILD SUPPORT
- HOW LONG & HOW MUCH
The decision to divorce is at least as important as the decision to marry. No one should think that after a divorce, all of life’s problems will magically disappear. They won’t.
For most people facing this decision, there are reasons for and against a divorce. Each reason should be seriously considered before proceeding with a divorce. An experienced marital counselor can help focus on what went wrong in the marriage and the chances of resolving the problems short of divorce. The counselor can also assist in conceptualizing how a divorce will change one’s life. Often an insurance or employee assistance program will provide some benefits for the first few visits. In addition to therapists, there are numerous books, web sites and other resources dedicated to the subject of marriage and divorce. While these resources are not specific to a person’s unique circumstances and are only as good as their respective authors, they do offer materials for reflection at no or nominal cost.
Michigan is a “no-fault” divorce state. If either party wants a divorce, the court will grant it without the need for determining who is to blame for the breakdown of the relationship. The court need find only that there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and that there remains no reasonable likelihood that the marriage can be preserved.
If the parties cannot reach a final settlement on all issues, fault may become a factor in resolving a particular issue on property, spousal or child support, parenting time, or custody.
Spouses can either reach an agreement concerning the division of property or allow a judge to make the decision after the attorneys present evidence on the relevant issues. In either event, the division is almost always final and cannot be modified.
Most property acquired during a marriage is considered marital property regardless of how it is titled and is subject to division. However, a spouse generally will be awarded property that spouse brought into the marriage, inherited, or received as a gift, if the property has been kept separate from marital property. An experienced attorney can identify such property and also determine whether other legal considerations make it likely one spouse will be awarded an amount in excess of 50% of an asset’s value. Joint and individual debts need to be identified and responsibility for payment assigned.
In high-asset cases, when the stakes are the highest, a person has the greatest need for a skilled attorney. Valuation of assets, pension and retirement benefit plans, discovery of hidden assets, tax consequences and premarital agreements all present traps for inexperienced attorneys. An experienced attorney can guide a client through this maze.
In determining property issues, the court considers any prior enforceable agreement (e.g., a prenuptial agreement), the particular assets forming the marital estate, the existence of any separate property, and the valuation of the property and debts.
When considering what division would be equitable, the court considers the following:
- The duration of the marriage.
- The contributions of the parties to the marital estate.
- The age 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.
- Any other factor relevant to the particular case.
In the absence of a compelling reason the court usually splits assets acquired during the marriage 50/50.
There are many factors used to determine an award of alimony, now known as “spousal support.” Unlike child support matters, however, there are no statutory guidelines. In many instances, no spousal support is awarded. In other cases, an award may be limited to a particular dollar amount or to a certain number of years. A skilled attorney can build a factual case in favor of or against a claim for spousal support.
The objective of this kind of support is to balance the incomes and needs of the parties in a way that will not impoverish either person.
The factors considered by the court in awarding spousal support are as follows:
- The past relations and conduct of the parties, including fault.
- The length of the marriage.
- The ability of the parties to work.
- The source and amount of property awarded to the parties.
- The age of 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 contributions of the parties to the joint estate.
- General principles of equity.
Spousal support may be modifiable or nonmodifiable depending on the basis for the award. If it is modifiable, factors such as remarriage, cohabitation, changes in need, changes in ability to pay, retirement and death may justify an increase, decrease or termination of the original award.
In most cases, both parents share legal custody and consult on major decisions affecting the minor children. The parents may share physical custody or one parent may have the label primary physical custody. However, if the parties cannot agree on custody, a skilled attorney can ensure that a parent’s rights are protected by investigating, preparing and presenting relevant facts to the court concerning the best interests of the children.
Custody is determined in accordance with the concepts of “established custodial environment” and “best interests of the child.” Important considerations include who has been the primary caregiver to the child, who will promote the child’s relationship with the other parent, who will provide a safe and secure environment for the child, and with whom a more mature child may prefer to live.
A parent who desires custody should be prepared to give specific facts showing (1) what the environment for the child has been, and (2) that at least some of the following factors favor that parent:
(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 continuation of the educating and raising of the child in its 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 marital 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 deems 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. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
(k) The presence of 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.
The court also considers 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 will award it unless the court determines on the record, based upon clear and convincing reasons, that joint custody would not be in the best interest of the child.
During the time the child resides with a parent, that parent will decide all routine matters concerning the child. An agreement by the parties or the judge’s decision may be modified at any time based on significant changes affecting the best interests of the minor children.
Most proposed relocations of a child’s residence outside of the State of Michigan must be approved by a court. The court will approve a move when both parties consent to it or when the move satisfies a test focused on the reason for the move, the advantages to the child from the move, and the adequacy of alternative parenting time for the other parent. For moves exceeding 100 miles within the State of Michigan, a slightly different test is used with much the same focus. If you believe a move is relevant and important to your case, you should bring that to your attorney’s attention as soon as possible.
If the parents do not share physical custody, the non-custodial parent is awarded visitation, now known as parenting time. Often, the parents agree to a specific schedule as a means of providing stability for the children. An experienced attorney may be able to suggest patterns of time that have worked well for others.
When a specific parenting time order is entered, it usually addresses time during weekends, midweek, holidays, school breaks (e.g., spring break and Christmas), summers, Mother’s and Father’s Days, and other times that advance the best interests of the children. Alternative contact, such as regular telephone calls, may be scheduled.
Common, general issues related to parenting time include:
- Clothing-Each parent should provide adequate clothing, though seasonal or specialty items can be transported back and forth (and returned in good, clean condition).
- Transportation-The parent exercising the time should transport unless otherwise agreed or ordered by the court.
- Arguments-Parenting time exchanges should not be spoiled with discussions of adult issues (e.g., support, bills, parenting time problems) or any disrespectful behavior.
Medical Needs-Parents should exchange all medications, medical instructions and other information that protects the care and well-being of the child.
- Denying Parenting Time-Time should be encouraged and facilitated by both parents and should not be denied on the basis of minor illness, “other plans,” or reasons unilaterally established by the parent or child.
- Extracurricular Activities-Parents should make every effort to cooperate and not schedule activities that interfere with the parenting time.
If a child will be placed in danger by parenting time, the judge may deny, restrict or impose supervision as a condition to parenting time. Again, any orders may be modified based on changed circumstances.
Both parents have an obligation to support their children. In Michigan, child support obligations are evaluated in light of numerous factors, including the incomes of both parents and family size. The Michigan Child Support Formula (also known as “the guidelines”) is used as a presumptive determination of how much one parent will pay the other.
In the absence of compelling reasons, the guidelines will be accepted as the appropriate amount of support. A higher amount may be justified when there are extraordinary uninsured health care expenses, special educational needs, extracurricular activities, and the like. On the other hand, a lower amount may be required when there are unusual custodial or parenting time arrangements, high transportation costs, other dependants, and the like.
Child support will continue to age 18, or up to 19 ½ when the child is regularly attending high school full time with a reasonable expectation of graduating. Modification of an existing support order will be permitted based on changed circumstances.
Generally, a judgment of divorce cannot be entered by the judge until after the case has been pending for 60 days or, if the spouses have minor children, after six months. If all issues are not resolved by agreement, entry of judgment must await trial by the court. In this event, the minimum waiting period of 60 days or six months may be extended considerably.
Legal fees result from time spent by an attorney in protecting the rights of the client and responding to actions of the other spouse. Because future human conduct cannot be predicted, estimating fees and litigation expenses remains more a matter of management than mathematics. In some cases, the fees may be relatively low because each party acts reasonably and promotes an early agreement. In others, the stakes may be sufficiently great that a spouse believes an issue in the case is worth the cost in time, money and emotional investment to litigate the issue. In any event, you should feel free to openly discuss legal fees with your attorney at your initial conference and as the case develops.
To assist your attorney, be prepared with the following information:
- An inventory of assets and liabilities.
- Information on income and earning abilities.
- Copies of any marital agreements or prior divorce papers.
- List of significant events during the marriage.
- Reasons for the divorce.
- Reasons why custody should be decided as you wish.
- Contributions made by each party during the marriage.
- The good and bad qualities of each party.
- Your short-term and long-term goals, with supporting reasons.
- Your spouse’s likely short-term and long-term goals, with supporting reasons.
As the proceedings develop, keep in mind these five ways to avoid unnecessary delay, cost and emotional turmoil:
- Do not take unreasonable positions.
- Do not hide assets or create fraudulent evidence.
- Do not involve all your friends, relatives, neighbors and co-workers in your divorce.
- Do not make your children choose sides.
- Do not play parenting time games with the other parent.
Overall, you should try to maintain good relations with your spouse, your children and anyone who may become a witness in the proceedings. If you would not want the judge to hear about it, don’t do it.