By John Graziani
MICHIGAN NO-FAULT DIVORCE
As Most people are of aware, Michigan is a no-fault state. In fact, Michigan has been a no-fault jurisdiction since 1973. Although there are arguments to ending this status of a no-fault jurisdiction, as can be recently attested to by legislation in the Michigan House and Senate, most divorce attorneys would argue that our system has been an effective system. Some have argued that the no-fault status has attributed to the rise in the number of divorces since the 1960’s. Most attorneys would argue that changing demographic and socioeconomic factors are responsible for the increase in divorces. Although the no-fault status generally means a 50/50 split in assets, there are certain factors such as fault that can be used in making a breakdown of marital assets. For instance, if it is found that one of the spouses had affairs or was extremely abusive, judges are now reluctant to award more property to the not-at-fault party. For instance, if there are assets of about $100,000, a judge, depending on the circumstances, would be likely to award anywhere from 55 – 60 % of those assets. The other factors to be looked at also involve the employability of one’s spouse.
DIVORCE REQUIREMENTS
Michigan is a no fault divorce state like 40 plus other jurisdictions. However fault can be a determining factor in how the property is divided up, along with how much alimony and child support will be paid. For example, if one of the spouses was having an affair or was abusive, that factor could be used by the judge in making a determination as to how marital property was divided or how much alimony was paid. There has to be a breakdown in the marital relationship to the extent that the objects of matrimony have been destroyed and there appears no reasonable likelihood that the marriage can be preserved. The residency requirements in Michigan are 180 days in the County 10 days prior to filing the action for divorce.
THE IMPACT OF DIVORCE ON YOUR LIFE
Divorce is a difficult time and there a significant changes that take place. For instance, you lose contact with mutual friends, and you no longer are involved with the same social groups or organizations. In fact, most persons who go through a divorce feel it is incumbent upon themselves to make a drastic change. This is not recommended. For one to be able to get through such a difficult period it is important that gradual changes are made. A complete break off of mutual friends may be recommended because such contact with those persons may remind one of the difficulties experienced throughout that marriage. It is important for divorced parents not to make too many drastic changes, especially for the sake of their children.
DIVORCE AND YOUR CHILD/REN
Many children of divorced parents are likely to react with anger and to feel a guilt complex. For example, many children will feel that they have been the cause of the divorce and as a result may feel bitterness with both parents. It is your job as a parent to indicate to your child or children that they were not responsible for the breakup of the relationship and it is especially important in the beginning of the separation that parents continue to emphasize this with their children.
Keep you children involved in many of the activities they were involved with prior to the breakup of the marriage. It is especially important to maintain continuity for the children so as to minimize the difficulty in the transition for the children.
Do not put your child or children in a position where they feel they must choose between one parent or the other. It is important as a parent that you are as level headed as possible and not to have your child placed in an uncomfortable position of determining who they favor as a parent. Children love both parents equally and do not have the mental or emotional capacity to deal with a situation such as this. This can be very hurtful and devastating to the child, not only in the short term but possibly can have long term psychological impact for the rest of their lives. Do not discuss the reasons for the shortcomings in the marriage. Although you may want to be an open parent with the children, it is important that this openness be only dealt with when the children are old enough and sophisticated enough to understand the issues. It is further recommended that you should talk about the good things that have come out of the marriage if one of your children asks you questions regarding it. By doing so you are not only a positive role model, you are also helping to nurture a positive attitude with the child or children. By constantly being negative or displaying bad feelings towards the ex spouse, or discussing things that went wrong, you are helping to nurture a very angry child who feels they must have a preference of one parent over the other. By taking a negative attitude you are hurting the child’s attitude and you could also help harbor even more bitterness then is necessary. The bottom line here is that you and your spouse are getting a divorce your children are not divorcing either one of you. So do not get your children involved in your bitter feelings about your spouse.
Your child should not be used as a pawn for disagreements that continue to exist between you and your ex- spouse. One of the most important issues confronting a parent after divorce is how they act or discuss the ex-spouse. Never use your child to deliver angry or hostile messages between you and your ex-spouse. Never use your child or children to deliver personal information about child support payments to your ex- spouse. Do not make comparison put-downs to your child regarding the ex-spouse.
It is important to remind you children that your friendships or relationships are not being used as a replacement to their parent. Tell the children they remain first and foremost in the minds of their parents. Emphasize to the child that they are not under any pressure to accept or reject your relationship.
The children should be given the maximum amount of visitation with the non-custodial parent. Just because the marriage failed does not mean your child or children is not entitled to a meaningful relationship with your ex-spouse. If anything, something good will usually come out of allowing the maximum amount of visitation. Unless there is a drug or alcohol problem or emotional and physical abuse during visitation, financial reason is not one reason to withhold visitation. For instance, if one spouse is behind in the child support payments it is not a reason to deny visitation. The parent who has the gripe with the system should petition the Friend of the Court for payments and to make the necessary arrangements to make themselves whole. It is clearly important that the child/ren not be used as pawns.
The child or children should be able to communicate freely with either parent and realize that such conversations will be kept private. Furthermore, that parent should not use those conversations to influence their behavior towards one parent or the other.
The parent should always assure their child that they will do their very best under the most difficult circumstance to make sure that child receives the best possible opportunities as if the parent were still married to the other spouse. For instance, as a parent, do not use newly found obligations with a new spouse as an excuse to deny your child/ren help. Some parents may feel that a new marriage precludes them from helping out their child/ren. That is a very poor excuse. If you deny your child opportunities because of your marriage, perhaps you should be denying yourself the full commitment and responsibility of that marriage. Although this may be a fascist point of view, your first and foremost responsibility is to an innocent child that you have brought into this world.
CUSTODY OF THE CHILDREN
Custody is truly the most litigious area in the divorce arena. Unfortunately in many situations the children are used as pawns to try to get the other spouse angry. The factors to be looked at in determining custody of the children involve the best interests of the child. If the court feels that neither spouse is acting in the best interest of the child, the court in some situations have appointed guardians to supervise and to raise that child. There are several basic issues in the area of custody. One involves the physical or residential custody, I.e. which parent will the child end up living with. There is also joint legal custody. Both parents can have joint legal custody even if one child resides exclusively with the other parent. With joint legal custody both parents make the decisions on behalf of the children concerning education, health, activities, religion, and general welfare. There are some situations that involve joint physical custody or often referred to as shared parenting. This can occur when one child resides with both parents equally and for a significant period of time. However, such a situation is generally not feasible especially when that child is of school age because most courts and psychologist deem it as necessary to create a stable learning environment.
In making custody decisions courts frown upon any parent who has abused alcohol or drugs. In such a situation, the parent who has abused drugs or alcohol will hardly be likely to get any custody. They will be fortunate to get limited visitation. If such abuse of drugs and alcohol is continuous, the court will order supervised visitation and very rarely grant an over night stay. Courts, with all things being equal, normally award custody to the mother; however in recent years with a growing number of women who have been successful in the professional ranks, such a trend is becoming less and less likely.
TAX CONSIDERATION IN DIVORCES
Before one goes on with the divorce there are tax considerations that must be very carefully reviewed. For example, if both spouses are co-owners in a business, it may be necessary to get a legal separation and discuss a structured settlement plan over a period of several years in order to allow one spouse the opportunity to purchase the other spouses interest in a business. If such a plan is not implemented in some businesses both spouses may be hit with a massive tax bill if such a sale is not structured properly. It is strongly suggested especially for high net worth couples and individuals to consult a tax professional before doing a split. Though this is not of primary importance with couples as they come to a decision to split, it will be of significant importance on the judgment day of reckoning. Many folks who are considering divorce do so for many reasons, most importantly the fact that they have drifted apart and they cannot get along. However, it is very important that persons who are contemplating such a decision be aware of the tax consequences of their decisions, this is especially important for couples who have lived in the same house for over 10 years. The new legislation for the home sale capital gains tax exemption softens the blow of a house sale because of a tax exempt status of up to $500,000 per couple and $250,000 per single seller but those persons who have a much more expensive house have to be very careful in their divorce plans.
ECONOMIC IMPACT OF DIVORCE AND SEPARATION
The economic impact of divorce and separation can be brutal. In many situations it can be downright devastating. One of the factors that causes the economic devastation involves setting up two separate households and making an additional payment. I’ve often advises clients that if their marriage is not at a total breakdown a separation period along with some marital counseling can do wonders. When one comes to a decision of a divorce the moving spouse looks at all the worst qualities of the other spouse. Unfortunately that spouse may not realize that the presently “difficult” situation can end up being very horrible. For instance, if a woman who have been working on a limited basis seeks to get a divorce without any financial support mechanism, it can be truly devastating economically, especially if the spouse whom she is seeking support from is not working steadily or is involved in a business that has peak and non-peak seasons. My suggestion for those persons who are cordial in planning the divorce is that they come to a compromise and allow for a transition period to take place before finally implementing the divorce plan. A perfect example involves selling a house. Whenever you are negotiating you obviously want to do so from a position of strength. You do not want to sell a house while going through a divorce or foreclosure. Therefore, I have advised persons and couples who are considering a separation or divorce to try as best as they can to get their financial house in order and to do as much dividing as possible before ultimately getting a divorce. For example, when a client is adamant about getting a divorce I tell them that they’ll be making sacrifices for a while but that the first 2 years determine whether they make it or whether they sink financially. I advise clients, wherever possible to share an apartment or house with a friend so if they have children they are in a position to make child support payments without going under. I also tell them that the ability to compromise with your spouse can save thousands perhaps tens of thousands of dollars that could take place in a nasty divorce conflict.
Social Security
Even if it is not mentioned in a divorce settlement, a divorced spouse can get benefits on a former spouse’s social security record if the marriage lasted at least 10 years. The divorced spouse has to be 62 or older and unmarried. A divorced spouse can start collecting benefits between the age of 50 to 60 if they are disabled.
Survivor benefits
Unmarried children under the age of 18 are entitled to survivor benefits if the former spouse passes away.
Credit
This is an area that is very important especially to the spouses who are not regularly paying mortgage payments or credit card bills. It is important that you stay current on bills because the action of one spouse can have a devastating impact on the other spouse, especially if the mortgage is not being paid on time or the credit cards are not being kept up. This is especially true if you are jointly named on a credit card or a home mortgage. It is important that you get a copy of the credit report to determine what your credit rating is. Most importantly you must keep up with payments and be aware of all the outstanding obligations that exist between you and your spouse.
Private and public retirement programs
It is important, especially for spouses who have been married for at least 10 years, to get an understanding of how much money is in the other spouses retirement programs. In some situations the worth of each spouses retirement program ends up canceling the others worth in a division of assets during the pendency of a divorce. However, this is an area that is of growing importance, especially to a stay at home spouse or a spouse who only works on a part-time basis. The five-year program is generally mentioned because of the fact that most private and public pension programs vest after that period of time. It would be prudent to get a tax professional to determine the worth of the pension program for present and future value.
ALIMONY
Alimony involves money one spouse pays the other for support and maintenance. There are several types of alimony. One involves lumps of alimony, which is used to help put the other spouse on equal footing with the paying spouse. There is also permanent alimony, which is paid until the death of the payer. There is also temporary and rehabilitative alimony. Temporary alimony usually last for several years and is usually done for non-working spouses to allow them the opportunity to maintain their standard of living or to get job training skills. The factors taken in determining the amount of alimony involve several factors. The most important factor involves the duration of the marriage, the income and net worth of both parties, the contribution of one spouse as a homemaker, and most recently courts have begun to award alimony based on the contributions of one spouse in education and furtherance of the career of the other spouse.
THE OFFICE OF THE FRIEND OF THE COURT
Each county has access to a friend of the court in the state of Michigan. Some counties in Northern Michigan may be combined for a Friend of the Court operation however, any county generally speaking that has more than 60,000 persons has a Friend of the Court operation. The Friend of the Court has psychologists and referees who review motions. Most of this work is for post divorce situations. A husband who has to pay child support may use that court to contest the amount that they are paying and ultimately have a review, a parent may use that office also to ask for an increase in support or a reduction in visitation, reviews may also be ordered through the Friend of the Court to make revisions in the amount of visitation a parent may have. Unfortunately, the office has been used too often by bitter parents to get back at an ex-spouse.
Friend of the court offers recommendations to motions and they may also offer mediation as a way of settling disagreements over custody or visitation of children.
PROCEDURES OF THE COURT
1. The Plaintiff begins by filing a Complaint or Petition for Divorce on the Defendant. This asks the Court to grant a divorce, orders child support or spousal support, establish a paternity case, start an out-of-state collection effort, and/or grant an order for custody of a child.
2. The Defendant must be given a copy of the summons and Complaint.
3. When the Defendant receives that papers (s)he is allowed time to answer the claims made, usually 21 days or (s)he may lose the right to be heard by the judge and result in an order granting the Plaintiff’s requests.
4. The judge must find that there has been a breakdown in the marriage to the point that the parties cannot live together as husband and wife in order to grant a divorce. The judge will then enter a Judgment of Divorce that will bring the marriage to an end. Michigan is a no-fault divorce state so a divorce can be granted even if one of the parties does not want a divorce. The judgment of divorce contains the decisions of the Court which deal with custody, visitation, support, property and other related issues. From the date of filing of a Complaint for Divorce without minor children the waiting period is a minimum of 60 days. For divorce cases with minor children the waiting period is a minimum of six months. After the waiting period the judge may grant a divorce.
TEMPORARY RESTRAINING ORDER OR PPO
You may need a temporary restraining order to prevent the other spouse from transferring or disposing assets and also awarding yourself temporary custody of children and a certain amount of child support. If there has been abuse of you or your children you will have to file a petition for personal protection order or PPO. This will be on the state police registry of a state wide computer system, which will effectuate the order immediately. If the spouse violates the PPO they could receive up to 90 days in jail. Of course, a show cause hearing must be held to determine if that person has violated such an order.
GRIEVING YOUR LOSS
It would be wise to wait at least a year after your divorce to deal with your grief before getting involved in another relationship. Now you have an opportunity to create the life you would like for yourself.
There is nothing you can do to change the past but everything you can do to make a better future.
John graziani, esq., is licensed to practice law in Michigan and has practiced for over 15 years. He has an office in southgate, Michigan where he has a general practice. His areas of practice include real estate, family law, criminal law, municipal work, immigration, and estate planning. He has done hundred of closings and real estate transactions.
John graziani earned his bachelors degree from the university of Michigan in 1984, and earned his juris doctorate from the univeristy of Detroit school of law in 1988. He attended notre dame school of international law in London, england.
John graziani has an extensive background in litigation and is up to date with the changes in michigan law...
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