Divorce and Custody

Family law is an area of the law that deals with family-related issues and domestic relations, including custody and divorce. These issues can be emotional and traumatic. Choosing your divorce lawyer can be one of the most important things you do. A person’s decisions in divorce and custody actions can have long lasting implications on not only the parties, but for the entire family.

A family law attorney must be able to couple knowledge with understanding and compassion. A family law attorney must be able to solve problems. Five years after the divorce, you will not be able to remember who “won” or “lost,” but you will remember whether the divorce was too expensive, whether your financial settlement or division was extremely unbalanced, and how your children either suffered or survived after resolution of your case. An attorney who does not work to solve problems before going to court will not be a good family law attorney.

In Michigan, divorce proceedings follow the statutory requirements as found in of the Michigan Compiled Laws. The Circuit Court has a “Family Division,” which handles all divorce cases in Michigan. To file for a divorce, at least one of the parties must have lived in Michigan for 180 days or more, and in the county where the case will be filed for at least 10 days, before filing a complaint for divorce.

A Complaint for Divorce is filed with the circuit court of the county where you or your spouse resides. Michigan law allows a divorce to be obtained without a determination of fault.

If you are served with a divorce complaint, you must file an answer within 21 days. If you fail to file an answer within 21 days, you can be defaulted. A default which is not set aside could work to your disadvantage when the court decides custody, parenting time, support, and property settlement issues.

In Michigan it takes a minimum of 60 days to get divorced. If there are minor children, the waiting period is 180 days. However, this 180-day waiting period may be reduced if "undue hardship" can be proven. However, in no case can the waiting period be shortened to less than 60 days.

The division of property in Michigan is not governed by any set rules. The division of property need not be equal, but it must be equitable. Nevertheless, the courts have certain principles of general application. In general, the court will consider the following factors in determining property awards:

1. duration of the marriage;
2. contributions of the parties to the marital estate
3. age of the parties;
4. health of the parties;
5. life status of the parties
6. necessities and circumstances of the parties;
7. earning abilities of the parties
8. past relations and conduct of the parties (e.g. fault); and
9. general principles of equity

There may even be additional factors that are relevant to a particular case. For example, the court may choose to consider the interruption of the personal career or education of either party. The determination of relevant factors will vary depending on the facts and circumstances of the case.

As the above factors indicate, fault in causing the breakdown of the marriage is still a consideration in the division of property. This is true notwithstanding the fact that Michigan is a no fault divorce state. Fault can include things like sexual infidelity, domestic violence, substance dependency/alcoholism, gambling addiction, among other things.

Property to be divided can include common items such as house, car, and bank accounts. It can also include professional degrees and practices, businesses, pensions, profit-sharing plans and other things that might not normally be thought of as property. Although every judge views property division differently, the most common approach is to divide the property equally between the husband and wife.

What was formerly referred to as alimony is now called spousal support. In determining if a party should be awarded spousal support, the court will take into account the following factors:

1. The past relations and conduct of the parties.
2. The length of the marriage.
3. The ability of the parties to work.
4. The source of and amount of property awarded to the parties.
5. The age of the parties.
6. The ability of the parties to pay alimony.
7. The present situation of the parties.
8. The needs of the parties.
9. The health of the parties.
10. The prior standard of living of the parties and whether either is responsible for the support of others.
11. General principles of equity.

Fault in causing the breakdown of the marriage can also be a factor in awarding spousal support. In certain rare cases, spousal support can be awarded on a permanent basis.. Permanent spousal support has been found appropriate when there is:

1. A long-term marriage with a spouse who has little or no career or marketable skills;
2. A long-term marriage, one spouse with far superior earnings, and the other spouse with a questionable earning potential;
3. Great discrepancy between incomes and the wife had devoted most of her adult life to the traditional role of wife and homemaker; and
4. A serious doubt that a spouse would be able to fully support herself because of schizophrenia or other mental illness.

These are just generalizations, with each case being decided on its own facts.

The Friend of the Court is an agency or branch of the circuit court established to assist the court in divorce-related cases. The Friend of the Court is staffed with analysts who meet with the parties and, after obtaining data, make a recommendation as to whom should pay child support and in what amount. The Friend of the Court is perhaps best known as the agency which collects and disburses child support payments. When a support payer falls behind in payments, the Friend of the Court may initiate enforcement proceedings. The Friend of the Court also investigates and makes recommendations concerning support, alimony, custody, and parenting time.

Custody is one of the most emotional and traumatic issues in any divorce case. The "Child Custody Act" sets forth eleven factors that a judge must consider when making a custody decision. In determining which parent shall have custody of the minor children, the court will determine what is in the "Best interests of the child.” The court will look at the sum total of the following factors in making it decision as to what is in the child’s best interests:

1. The love, affection, and other emotional ties existing between the parties involved and the child.
2. 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.
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.
4. The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
5. The permanence, as a family unit, of the existing or proposed custodial home or homes.
6. The moral fitness of the parties involved.
7. The mental and physical health of the parties involved.
8. The home, school, and community record of the child.
9. The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
10. The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
11. Any other factor considered by the court to be relevant to a particular child custody dispute.

The court has broad discretion in determining which factors are the most important. Disputes over child custody are very disruptive to all concerned, especially the children.

Child support is money paid by a non-custodial parent to the custodial parent for the support of a minor child. In determining the amount of child support, Michigan has adopted a statewide child support guideline. The guideline considers the incomes of both parents and the needs of the child based on national statistics showing what it costs to raise a child in a typical family of a similar income level.

Child support is modifiable upon a showing of "changed circumstances." Support is usually ordered until the minor child reaches the age of eighteen or graduates from high school, whichever occurs last. Child support is paid through the Michigan State Disbursement Unit, PO Box 30351, Lansing, Michigan 48909-7851, and monitored by the county Friend of the Court. The Friend of the Court keeps records of payments and for inexpensive enforcement if an arrearage accrues.

Child support obligations are not dischargeable in bankruptcy and are given priority in bankruptcy over all other debts except federal income tax liens. A failure to pay child support over an appreciable period of time can result in felony charges against the non-paying parent.

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