BEFORE A CASE IS FILED

If I am not yet ready to divorce, why should I talk to an attorney now?

Even if you aren’t sure whether you want to get separated or divorced, you need to arm yourself with as much information as possible on the subject — even before discussing the issue with your spouse.  Just as marital relationships are complex, the law of dissolving marital relationships is even more so, and resolution of even the simplest situations can be very confusing to spouses already in distress.

Actions taken before starting the divorce process can have a significant impact on the outcome of a divorce. For that reason, it is critical to carefully consider the implications of these actions well before a divorce begins.  Spouses who act without understanding the potential results of their actions often create circumstances that cannot be altered after they begin the divorce process.

Meeting with an attorney to get advice about these issues does not create any obligation to get divorced, nor does it mean that divorce is inevitable.  In fact, a family law lawyer sometimes even can prevent a divorce from happening, through sound advice and counseling.

Most family lawyers have a great deal of experience helping clients achieve reconciliation when that is a desired result.  In those circumstances, it is important for your lawyer to be able to find appropriate counselors that best fit the family’s unique situation, and to make sure that you are well-protected during the reconciliation process, in case reconciliation does not work.

My spouse and I have agreed to make this divorce amicable, so why can’t we just come up with an agreement first and then hire an attorney to write up our agreement?

Even people who are able to maintain amicable relationships with their spouses need objective, confidential, and thoughtful guidance; otherwise, they may unwittingly commit to a course of action that turns out to be utterly unfair or unworkable.  Consulting with a family attorney can give you an objective perspective, grounded in a clear understanding of the law, which then will help you rationally consider the implications of settlement terms that your spouse may present, in the context of what the law allows or requires.

False assumptions about the law or your own financial circumstances can create serious long-term problems, and an understanding of how the law applies to your circumstances can prevent certain problems from ever arising.  With preventative counsel and guidance, you should understand that:

• It is never a good idea to rely on your spouse’s version of what the law is or the true nature of your financial circumstances.

• It is never a good idea to sign documents offered by a soon-to-be-former spouse, without first getting independent legal advice.

• It is never a good idea to transfer or commingle asset ownership before or during a divorce without first getting legal advice, because doing so can radically change how that asset is treated when assets are divided in a divorce.

• While it seems easy enough, it is never a good idea to attempt to handle parts of your divorce cases alone, without representation, because it can make subsequent negotiations about remaining issues difficult or impossible, and create procedural and legal problems that may not be apparent to someone untrained in the law.

These are just a few of the many common mistakes that people make that can be critical in any divorce.  For that reason, it is critically important to seek professional advice before taking any shortsighted actions that could have negative long-term implications.

 

My spouse and I have agreed that I can move out of the house, so is there any reason I that I should not move out right now and talk to an attorney later?

Although moving out may seem harmless, leaving the house without first understanding the implications of doing so can cause strategic and legal problems and can have long-term implications for spousal support, child custody, and parenting time. Unless your spouse is violent, do not move out of the marital home until after you’ve consulted with an experienced family law attorney.  (Of course, if your spouse is violent, it is imperative first to take immediate steps to ensure your physical safety.)

 

May I discuss with my spouse or a friend that I have been involved an extramarital affair, and as a result, our marriage is now over?

Admitting an extramarital affair to anyone, other than in a confidential, privileged consultation with an attorney, can lead to serious problems. In addition to the fact that adultery is illegal in most states, the admission of an affair can have other dire consequences, both financial and strategic.

Anything that you say privately to a lawyer is completely confidential and subject to the attorney-client privilege. This means that the your private conversations with a lawyer cannot be revealed or discovered by anyone, even if you don’t decide to have that lawyer represent you.  Therefore, it is important to consult with an experienced family lawyer before ever revealing any information of this nature to anyone.

Since I want to get my divorce over with as quickly as possible, why can’t I just accept my spouse’s settlement proposal and end the divorce right away?

No one has ever said that getting divorced is fun.  When a divorce is especially painful and emotional, it is natural for one or both spouses to wish to settle quickly and move on with their lives as soon as possible. However, the long-term financial consequences of rushing through a divorce can be devastating.

Keep in mind that almost every divorce takes less than a year, and many take just 6 to 9 months to complete thoroughly and properly.  So, while the duration of a divorce case represents a relatively short period in a person’s life, the consequences of rushing that process can result in significant long-term problems.  It is important and valuable to spend time planning the divorce itself and the future after the divorce, because the results of the divorce will last far longer than the divorce process itself.

 

My divorced friend has given me free advice that I want to follow. It seemed to work well for that friend in his divorce. Should I follow his advice?

Every divorce case is as unique as the people involved in the marriage, and attempting to impose cookie-cutter solutions on complex problems is rarely effective.  The successful resolution of any divorce requires a thorough understanding of the case’s specific circumstances and the creation of solutions carefully tailored to those unique circumstances.  Getting advice from a non-lawyer friend who has been involved in one or two divorces is no substitute for the advice and counsel of a knowledgeable family attorney with years of graduate school education, training, and experience.

It also is pointless to compare one person’s divorce settlement with others who also have been divorced.  Matters such as alimony and child support are determined in part by examining and understanding each individual spouse’s cash flow available for support, which may be far different from taxable income.  Property and support settlements also may be structured in a variety of ways to take advantage of certain tax benefits associated with support, or to reallocate or reduce future risks to the recipient, meaning that what one person may decide to receive in property or support might be very different from what another person receives, even though the asset values or taxable incomes of the parties may seem similar.

 

I thought that fault does not matter in “no-fault” divorce state?

In Michigan, courts will enter a divorce where “there has been a breakdown of 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.”  No proof of “fault,” or wrongdoing on the part of either spouse (such as adultery, cruelty, or domestic violence), is required to obtain a divorce in a “no-fault” state.

However, even though fault does not need to be proved to get a divorce in a “no-fault” state, marital conduct or fault is very much relevant to how a divorce court handles the issues of division of property and spousal support, and to some extent, child custody.  Therefore, how that fault is handled can have a significant impact on the outcome of your divorce case.

 

What is the difference between a “legal separation,” divorce, and annulment?

A divorce ends your marriage. After you are divorced, you will be single, and you can remarry.  In a divorce, you are entitled to ask the court for a division of property, spousal support, child support, custody, and parenting time.

A legal separation (or “separate maintenance“) does not end a marriage.  A separation allows couples who do not want to get a divorce, but who want to live separately (both physically and financially), to legally decide with finality financial, property, and parenting issues.  A legal action for separate maintenance must be filed in court and is similar to a divorce proceeding.  People who opt for a separation instead of a divorce often do so for religious or health-care reasons.  A legal separation often can be converted into a divorce later by just one spouse (although doing so may have some significant complexities), so it is very important to have sound legal advice on this kind of arrangement before entering into any kind of an agreement for a legal separation.

An annulment is a court order that says your marriage never was legally valid.  Marriages can only be annulled in certain circumstances:

• One party had not reached the age of legal consent (16) when the couple married
• One party’s consent to the marriage was obtained by force
• One party’s consent to the marriage was obtained by fraud: for example, the party failed to disclose that he or she could not have children or concealed that he or she had committed a crime of moral turpitude
• One party is related to the other as a parent, grandparent, sibling, aunt, or uncle or has a another similarly close family relationship
• One party was not capable of legally contracting at the time of the marriage due to a physical or mental incapacity
• The person who performed the marriage ceremony did not have the legal authority to perform a marriage
• Bigamy

A lawsuit to annul a marriage must be brought within two years of the marriage.

 

AFTER A CASE IS FILED

Will our property be divided 50/50 during a divorce proceeding?

Not necessarily.  In Michigan, courts apply the concept of “equitable distribution.”  In other words, the court will divide any property you accumulated during your marriage in the way that the judge feels is fair, based on what each spouse contributed to the marriage, the age and health of each spouse, and the length of the marriage.  The court may also consider fault in dividing property, as well as whether property is marital or separately acquired (premaritally or by gift or inheritance).

In addition, even if the values of the parties’ assets are allocated equally between them, some assets may be “better” than others (in terms of structure, value, or liquidity), so it is very important to clearly understand what is being allocated and how it is being allocated before entering into a divorce settlement.

 

Will I be entitled to alimony?

Michigan courts may award alimony, or “spousal support,” depending upon the application of several factors:

• The past relations and conduct of the parties
• The length of the marriage
• The ability of the parties to work
• The source and amount of the property awarded to the parties
• The age of the parties
• The ability of the parties to pay alimony
• 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
• General principles of equity (fairness)

Therefore, how much alimony you might receive or pay, and for how long, depends very much upon the unique facts and circumstances of your case.

 

How will the court decide who gets custody of my child?

When parents cannot mutually agree on custody and parenting time arrangements, a court may decide for the parties the issues of legal custody, physical custody, and parenting time.

1. “Legal custody” refers to the legal authority to make major decisions on behalf of the child.  Examples of major decisions include:  where the child will go to school, the type of education, the form of religious upbringing, and non-emergency medical decisions in which the parents share decision-making responsibility for their child’s important life decisions.
2. “Physical custody” generally refers where the children live the majority of the time.
3. “Parenting time” refers to how the parents will share parenting time arrangements and responsibility for their children’s day-to-day care.  It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents.  A child has a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that it would endanger the child’s physical, mental, or emotional health.  Parenting time is granted by a court in accordance with the best interests of the child.  Michigan parenting time guidelines are available at: http://courts.mi.gov/administration/scao/resources/documents/publications/manuals/focb/pt_gdlns.pdf.

In making a custody decision, a Michigan court will analyze several factors:

• The love, affection, and other emotional ties existing between the parties involved and the child
• 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/her religion or creed, if any
• 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 Michigan in place of medical care, and other material needs
• The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity
• The permanence, as a family unit, of the existing or proposed custodial home or homes.
• The moral fitness of the parties involved
• The mental and physical health of the parties involved
• The home, school, and community record of the child
• The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference
• 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
• Domestic violence, regardless of whether the violence was directed against or witnessed by the child
• Any other factor considered by the court to be relevant to a particular child custody dispute

Note that although the court will consider a child’s preference, only children over 18 (i.e., over the age of majority) are entitled to decide for themselves with which parent they would prefer to live.

 

How will the court decide how much child support I am entitled to receive?

The parents of a minor child always have a duty to support that child.  Macomb Co. Dep’t of Social Services v. Westerman, 250 Mich.App. 372, 377 (2002).  In determining the appropriate amount of child support, a court must presumptively follow the Michigan Child Support Formula (also called the child support guidelines) in deciding the appropriate amount of child support to award.

After child support is ordered, a parent can ask the court to modify it every three years or when a significant change in circumstances occurs.

 

Do I have to go to court to get a divorce if my spouse and I agree on everything?

You do not have to go to court for a contested hearing or trial, but you or your spouse must appear in court to give very short testimony to have the final judgment of divorce entered.  The spouse who filed the lawsuit seeking the divorce must answer a few questions in court in front of the judge, affirming the statements made in the divorce complaint, testifying that the marriage has broken down, and acknowledging that the settlement reached is agreeable to both spouses.

 

Can I prevent my spouse from seeing our child?

Generally, no, unless your spouse is likely to abuse the child physically or sexually, will fail to meet the child’s needs, or will place the child at risk of harm.  Circumstances which result in one parent not seeing a child are infrequent but they do happen from time to time in complex and difficult situations.  If you feel that your circumstances warrant your spouse not seeing your children, it is important to have a careful plan in place before taking legal action, because each step in the process can have significant (and sometimes unintended) long-term implications.

 

How long will I have to wait for the court to grant a divorce?

If you do not have children, there is a 60-day waiting period after the case has been filed.  Couples with minor children generally have to wait 6 months, but that limitation can be waived if both parties agree that it is in the best interests of their minor children to do so.

 

Can I prevent my spouse from getting a divorce if I ignore the complaint?

No.  It takes two people to agree to get married, but it only takes one person wanting a divorce to get a divorce.  If you fail to respond to the complaint your spouse (the plaintiff) filed in court by filing what is called an “answer” to the allegations with the court, the plaintiff can ask the court to enter a “default judgment.” In this case, the court can enter a default judgment of divorce, even without your consent.