FAMILY LAW FAQ

It ordinarily is a good idea to consult with a lawyer about major life events or changes, such as a divorce. S/he will protect your rights, as well as the rights of your children. S/he keeps current with the laws in your state concerning marriage, divorce, marital property, child custody and parenting time, and family support. Trying to manage your divorce on your own may result in costly mistakes.

Separate maintenance (often referred to as “legal separation”) is a legal process by which a married couple may formalize a de facto separation while remaining legally married. Separate maintenance is granted in the form of a court order. Furthermore, in cases where children are involved, a court order of separate maintenance often makes temporary arrangements for the care, custody, and financial support of the children. Divorce on the other hand, is a legal process in which a judge or other authority dissolves the bonds of matrimony existing between two persons, thus restoring them to the status of being single and permitting them to marry other individuals. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt, though these matters are usually only ancillary or consequential to the dissolution of the marriage. Separate maintenance does not automatically lead to divorce.

There are many possible factors that bear on the amount and duration of the support. The length of a marriage is one important factor for the court in determining whether an award of spousal support (also referred to as maintenance or alimony) is appropriate. The court may
also consider other factors such as age, health, employability, behavior, the standard of living during the marriage, the ability to pay support, and the need for support. Generally, spousal support lasts for a term or period. However, it may last longer if the marriage or civil union lasted longer.

Alimony and spousal support are terms which are used interchangeably to refer to the legal obligation on a person to provide financial support to their spouse before or after marital separation or divorce.

Physical custody involves the day-to-day care of a child and establishes where a child will live. If a parent has physical custody of a child, that parent’s home will normally be the legal residence of the minor child. In custody cases, the schedule for which parent provides lodging and care for the child is defined by a court-ordered custody schedule. Legal custody involves the division of rights between the parents to make important life decisions relating to their minor child. Such decisions may include choice of a child’s school, religion, choice of physician, whether the child should attend therapy and with what therapist, and decisions relating to medical and orthodontic treatment.

Legal custody may be joint, in which case both parents share decision-making rights, or sole, in which case one parent is vested with the rights to make those key decisions without regard to the contrary wishes of the other parent.

Contested divorces mean that one of several issues are required to be heard by a judge at trial level – this is more expensive, and the parties will have to pay for a lawyer’s time and preparation. In such a divorce the spouses are not able to agree on issues such as child custody and/or division of marital assets. In such situations, the litigation process takes longer to conclude. The judge controls the outcome of the case.  In an uncontested divorce, the two parties are able to come to an agreement (either with or without lawyers/mediators) about the property, children, and support issues.

Michigan’s no-fault divorce laws do not consider adultery as a ground for divorce. Nevertheless, such misconduct can be considered by the court in determining child custody arrangements, awarding spousal support, and when dividing the marital estate.

Michigan is an equitable division state. Therefore, equal distribution may be equitable in some cases but not others. During a divorce, all marital assets and liabilities will be divided fairly between the spouses based upon the circumstances of the marriage and divorce. A spouse may receive a greater share of the marital estate.

Even if you do not agree to your spouse divorcing you, you cannot prevent it. A divorce under Michigan’s no-fault divorce laws can be granted if one spouse demonstrates that the breakdown of the marriage is irreparable.

A couple with a minor child(ren) is required to wait at least six (6) months from the filing of the complaint for divorce. This waiting period may be shortened under certain circumstances. Without minor child(ren), the waiting period is a minimum of sixty (60) days to finalize a divorce. The length of the process will depend upon the complexity of the issues and the extent of agreement.

Michigan is a “no fault” divorce state. This means that a party can obtain a divorce regardless of fault. However, fault in causing the breakdown of the marital relationship can be a factor in determining property division, child custody, parenting time, and spousal support disputes.

Yes. An annulment is sometimes considered an alternative to divorce, though it is uncommon. An annulment proceeding seeks a ruling that a valid marriage never took place because of a defect existing when the parties were married. A marriage may be voidable or void from the start. There are various grounds for an annulment such as fraud, the marriage has not been consummated, and incapacity to marry. Each case requires a detailed legal analysis for qualification for annulment.

Michigan law requires the use of a child support formula. The statutory requirements for the formula are that it be based on the needs of the child and the actual resources of each parent. The primary factors in calculating support are each parent’s net income, the number of children being supported, and the parenting arrangement for the children. The formula also provides for the division of health care costs and child care expenses. The Office of Child Support has a free and public support calculator called the MiChildSupport Calculator.

Division of marital property in Michigan follows the rule of equitable distribution. There is no requirement that property awards to each party be precisely equal, however there is a presumption that the division of marital property (to be differentiated from separate property) shall be roughly congruent. Should a court depart from this presumption of congruence, it must explain its reasoning.

The general rule is that custody, parenting time, child support and periodic spousal support provisions of a divorce judgment are modifiable, but property division and alimony-in-gross provisions are not. Consent judgment provisions may be nonmodifiable. A court generally has no jurisdiction to modify a provision of a divorce decree unless a party files a motion requesting modification. Modifications must be well grounded upon a good cause or substantial change in circumstances.

While Michigan allows for prenuptial (antenuptial) agreements the law is always evolving. Generally, prenuptial agreements enable the parties to determine their own financial future in the event their marriage is terminated by a court, or upon death of a spouse. A written contact is required in order to seek enforcement in the context of a divorce case. There are various other factors to be considered in determining the enforceability of a prenuptial agreement. Also, the parties cannot, by prenuptial agreement, deprive a trial court of its equitable discretion under certain Michigan laws. Therefore, it is very important to have the contract drafted by an attorney with experience in such matters