FAMILY LAW FAQ
Berry Moorman was founded on values of trust, loyalty, and commitment to its clients. Nowhere are these more important than in the complex and ever-changing area of family law.
In this section, we have comprised some of the most commonly asked questions regarding Family Law, and if you find that you are still seeking answers, do not hesitate to retain the assistance of one of our attorneys from the Firm’s Family Law Practice Group. We will explain the divorce process and how it is likely to affect you. Our attorneys are here to help you during this stressful time, and bring certainty in your life.
I am getting divorced. Do I need an attorney?
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.
What are the legal grounds for obtaining a divorce?
Grounds for divorce are regulations specifying the circumstances under which a person will be granted a divorce. Each state in the United States has its own set of grounds. A person must state the reason they want a divorce at a divorce trial and be able to prove that this reason is well-founded. Michigan is a “no fault” divorce state, and therefore does not require fault grounds for divorce. A spouse, however must demonstrate that irreconcilable differences have caused the marriage to break down and there is no reasonable likelihood that the marriage can be preserved.
What is the waiting period for a divorce in Michigan?
Six months. Either or both parties must have lived in Michigan for 180 days prior to the filing of the complaint for divorce. A party is required to live for at least 10 days prior to filing in the county in which the complaint is filed.
What is the difference between legal separation and divorce in Michigan?
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.
How long do you have to be married to get spousal support in Michigan?
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.
What is the difference between spousal support and alimony?
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.
What's the difference between physical and legal custody?
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.
What's the difference between joint and sole legal custody?
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.
What is the difference between uncontested and contested divorce in Michigan?
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.
How does adultery affect divorce in Michigan?
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.
Is Michigan a 50/50 state in a divorce?
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.
Can I prevent a divorce?
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.
What is the waiting period for a divorce?
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.
Does “fault” in a divorce really matter?
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.
Does Michigan law allow for an annulment of the marriage?
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.
How is the amount of child support determined?
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.
How do we divide our property upon divorce?
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.
Can a court modify a judgment of divorce?
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.
May a prenuptial agreement protect my assets?
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
Family Law Attorneys
By John Schrot, Jr.
Berry Moorman is proud to announce that Attorney and Shareholder, John J. Schrot Jr. has been elected President of the Birmingham Rotary for 2019-2020. Mr. Schrot will begin his duties as of July 1, 2019.
By John Schrot, Jr.
Be careful if and when you light up, or otherwise consume, marijuana, as you may get burned. In spite of shifting legal and cultural norms, using recreational or medical marijuana can work to your disadvantage in divorce and/or child custody/parenting time cases.
By John Schrot, Jr.
Don’t let a disaster black out your business. Most companies don’t survive emergencies. Delay, in and of itself, can be devastating to the success and/or viability of a business. While there are many aspects of business preparedness, this article focuses on legal preparations.
by John J. Schrot, Jr.
The 2017 Tax Cuts and Jobs Act (the “Act”) was signed into law in December, 2017, and it changes the treatment of spousal support (alimony). Currently spousal support is tax deductible for the paying spouse and taxable as income to the receiving spouse, unless the parties otherwise provide in a judgment of divorce or separate maintenance. The spousal support deduction was enacted in 1948 with the idea that if a former family’s income is divided between the parties that tax treatment should correspond.
By John Schrot, Jr.
A client recently advised me that her daughter became engaged and the couple plan to marry in the near future. As the intended couple have only known each other briefly, she further related her belief that the couple should in the interim cohabitate to better understand one another; and, she asked me about the complications thereof. I suggested, in part, their use of a cohabitation agreement.