What is a “divorce” and how do I prepare for one?
Divorce is the legal process by which a marriage is terminated. During this process, the marriage is legally ended and related issues, such as spousal and child support, child custody and visitation, and division of assets/debt, are resolved. It is not unusual for the parties involved to reach an agreement on these issues. However, assistance from a mediator or court are options if an agreement cannot be reached voluntarily.
Preparing for a divorce can often be a difficult process. It is important to remember that planning effectively may positively affect your outcome. Generally, it is a good idea to document what is happening in the relationship, what the marital assets/debts are, and contact a lawyer.
What is a “separation”?
There is no “legal separation” in Michigan. Rather, Michigan provides for a “separate maintenance”. A separate maintenance is similar in many ways to a divorce, except that it does not technically end the marriage. A separate maintenance is often used for religious reasons where divorce is not permitted. A separate maintenance allows for the division of marital assets and may grant spousal/child support; however, it does not legally terminate the marriage.
What happens during the divorce process?
Divorces can be relatively simple or much more complex depending on the divorcing parties’ assets, ability to provide, and existence of children. A basic outline of the divorce process is as follows:
- One spouse contacts a lawyer, who assists in the preparation of a summons and a complaint. The summons places the other spouse on notice that a divorce action has begun. The complaint begins the divorce action and outlines what the filing spouse is requesting.
- The summons and complaint are filed with the court and copies are served on the other spouse.
- The served spouse must submit a response to the complaint within the time period indicated. If not, a default may be granted by the court and the spouse initiating the complaint will be granted the relief he/she requested. The response, or answer, must set forth the relief that the answering spouse requests.
- “Discovery” is usually the next phase where the parties’ attorneys request and disclose documents and other records from each other. The parties use this information to determine how to proceed.
- After discovery or at any time in the process, the parties may desire to attempt to settle the case. Settlements attempts are usually made with the help of their attorneys and/or using a mediator. Once a settlement agreement is reached, ad judgment of divorce will be prepared and signed by the parties. It will then be filed with the court and await approval from a judge.
- If not settled, the case will proceed to trial where a judge will decide the case.
- Both parties have the right to appeal the judge’s decision.
What if we were never married, but we had a child/children together?
The process is similar to a divorce, as explained above and below, but either parent files a support, custody, or paternity complaint rather than a divorce complaint. Mediation is a strongly recommended method to resolve these cases. Jayne A. Dykema is a certified mediator.
How is child custody determined?
If the parents cannot reach an agreement on child custody and parenting time, the court will make a decision that is in the child’s best interest. MCL 722.23 defines and lists factors that the court considers when determining the “best interests of the child”, they are:
[row_box class=””]MCL 722.23 Sec. 3.
As used in this act, “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) 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 or her religion or creed, if any.
(c) 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.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) 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.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.[/row_box]
How is child support determined?
Child support is determined primarily on the income of the parents, the number of children dependent on each party, and the amount of time the children spend with each parent. Child support is presumably determined by the Michigan Child Support Formula, because judges must follow the formula unless it is an “unjust or inappropriate” result. The court may deviate from the formula, or the parties may agree to deviate from the formula, but only if the child support order clearly sets forth in writing why following the formula would be unjust or inappropriate.
The Child Support Formula can be found at http://www.courts.michigan.gov/scao/services/focb/ mcsf.htm. A Child Support Worksheet is used to analyze income and other factors and determine a proper child support recommendation. These other factors include:
- Income of the parents
- Number of children
- Daycare costs
- Health/dental insurance costs
- Financial obligations that one or both parents are responsible for
Payments are normally made through the Michigan Friend of the Court Bureau or the State Disbursement Unit (SDU). More information is available at https://www.misdu.com/secure/. Each parent is responsible to notify the Michigan Friend of the Court Bureau of any changes in their employment or changes in insurance benefits.
Child support may cover health care, dental care, childcare, and education of the child. The Judgment of Divorce must include a provision that requires one or both of the parents to provide health care coverage, if such coverage is available at a reasonable cost as a benefit of employment.
Can child support be modified?
Yes, although modifications can only be requested when there has been a significant change of circumstances. A party can file a motion to change child support themselves or through an attorney. The Kent County Friend of the Court will only do a review of child support once every 36 months, and only at the request of a party. At Dykema Law Offices, we can help determine whether a change of child support is appropriate. We can also subpoena the payer’s employment information to determine whether there has been an increase in income.
How is spousal support determined?
There are many factors that are considered when determining whether support will be provided. These factors are also used to determine how long and how much support is granted. The leading Michigan case regarding spousal support is Sparks v. Sparks, 440 Mich 141, 485 NW2d 893 (1992). The factors are:
(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 and amount of property awarded to the parties; (5) the age of the parties; (6) the ability of the parties to pay spousal support; (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; and (11) general principles of equity.
Can spousal support be modified or terminated?
Yes, although some spousal support orders are specifically “non-modifiable”. Remarriage and/or cohabitation are typical “triggers” spelled out in the judgment for termination of spousal support. A change in circumstance or ability to pay may be a ground for termination or reduction in spousal support, provided that there are other factors that make payment impractical. Unlike permanent spousal support, “alimony in gross” is not modifiable except for fraud, mistake, excusable neglect or other grounds for relief from judgment. In Kent County, our Judges often use “rehabilitative” spousal support (when appropriate) to allow a non-working spouse to be “rehabilitated” or educated to enhance employment possibilities.
Family Mediation – A BETTER CHOICE.
In family mediation, the parties choose a neutral, trained mediator to help guide their discussions toward resolution of their family law issues. You have the choice at Dykema Law Offices to hire Jayne A. Dykema as a mediator or as an attorney. If you are ordered to attend mediation with a court appointed mediator, one of our attorneys can accompany you to the mediation or we can meet with you prior to the initial mediation session to prepare you to meet with your spouse and the mediator to resolve your case. Mediation helps the parties discuss their own ideas and resolutions rather than having the judge decide. You know your situation better than the judge and mediation allows you more control over the result. For more information on family mediation.
What is the difference between a “Pre-nuptial” agreement and a “Post-nuptial” agreement?
Prenuptial agreements are pre-marriage contracts between two people that outline each party’s property rights in the event of a death or divorce. A postnuptial agreement is very similar but the agreement is entered into after the marriage.
The requirements for a valid prenuptial or postnuptial are that there is full disclosure between the parties and also that both individuals voluntarily to enter into the agreement. Each party should hire their own independent counsel before signing a prenuptial or postnuptial agreement. Some of the situations that can result in an agreement being invalid are errors in the drafting of the document, failure to adequately provide for a spouse, failure to fully disclose assets by either party or both; and/or failure to have each party represented by independent counsel.
How do I get more information?
If you would like more information, please contact our office to set up an appointment with one of our family law attorneys.