General Divorce FAQ’s
All of us go through difficult times and divorce is a big decision. It is not right for every situation. You have to be mentally, emotionally and financially prepared to go through the process. Many people just jump in without giving any thought or preparation to what life will be like after divorce. This could cause you to make poor decisions throughout the process that could have a long-lasting impact on your life. If you are even considering whether or not to begin the divorce process you should consult with an attorney to determine if it is truly the best option for your situation.
If you and your spouse do not have any minor children at the time that you file for the divorce then you must wait a minimum of 60 days from the day you file your complaint before you can finalize your divorce.
If you and your spouse have minor children at the time that you file for divorce then you are subject to a 6-month statutory waiting period which begins on the date that the initial documents are filed. Many judges will allow you to waive the 6-month statutory waiting period if good cause is shown, and this is determined on a case-by-case basis.
If you have filed for divorce and you and your spouse decide you want to reconcile then you simply ask the court to dismiss your case. Courts look favorably upon this option and are just about always willing to dismiss a case to give the parties another chance to work things out. However, if only one party wants to dismiss the case and the other party does not, then it is not as easy to have your case dismissed and it will likely continue to proceed through a final judgment. Michigan is a no-fault state when it comes to the reason for the breakdown of the marriage and it only takes one party to say that they want to be divorced in order for the court to proceed forward.
Michigan is a “no-fault divorce” state which means that a divorce will be granted regardless of whether or not either party is considered to blame for the breakdown of the marriage.
The fact that Michigan is a “no fault divorce” state does not mean that compelling reasons leading to the breakdown of the marriage such as abuse, neglect, substance abuse, emotional or physical abuse, infidelity, and/or mental health issues, have no impact on the case. Fault can be considered when analyzing specific aspects of the case such as custody and parenting time of the child(ren), child support, spousal support and determining an appropriate division of marital assets and debt.
Although there is an advantage to filing first in some situations, it does not always matter as each situation is unique.
In certain situations, especially if you are concerned about your spouse moving/hiding assets, then there is an advantage in filing first so that certain orders can be obtained to prevent your spouse from manipulating your assets prior to filing.
In other situations, if you have concerns for your children while in your spouse’s care, then there could be an advantage to file first so that you can seek immediate/temporary guidance from the court regarding custody and parenting time issues.
When you file for divorce, you can request that the court enter a Restraining Order on Assets that prevents either you or your spouse from depleting the marital estate. These orders are typically mutual so that neither you nor your spouse can deplete the marital estate.
When you file for divorce, you can request that the court enter a Status Quo order that requires you and your spouse to continue maintaining the status quo. This means that you would both be required to handle your financial obligations while the divorce is pending the same as you did during the course of your marriage. This means that you would need to continue to deposit your paychecks into the same accounts, , pay bills from the same accounts and not engage in any unusual spending. It is best to make sure that you are clear on how bills were paid prior to filing when making this request.
Legal custody is about who is able to make decisions regarding major issues affecting the general welfare of the minor children. This includes medical, educational, and religious decisions. Medical decisions include regular general care physicians as well as decisions regarding treatment if your child becomes ill or has special needs. Educational decisions include where your child goes to school. Religious decisions include what faith the children will follow and what sacraments your child may/may not receive. Typically, the courts grant joint legal custody which means that both you and your spouse must agree on all of these major life decisions. It is important to keep in mind that simply because parties share joint legal custody does not mean they are entitled to any specific parenting time schedule. Also keep in mind that for school purposes, if the parties share joint legal custody then a child has an address with each parent and can attend school in either parent’s district.
Although there is no legal definition to physical custody, we tend to refer to physical custody as who the child is physically with and where the child primarily resides. Joint physical custody simply means that the parties share the child and that the child calls each parent’s house their “home”. Joint physical custody does not necessarily mean that the parties share an equal 50/50 schedule.
Sole physical custody means that the child resides primarily with one parent, but the other parent will have a regular parenting time schedule with the child. Barring any unusual, extenuating circumstances, both parents will have a parenting time schedule with the child.
In making a child custody determination, the Court is required to consider the “the best interests of the minor child” which are defined by law. The Court will then analyze the best interest factors and make a determination on whether each factor favors mom, dad, or neither party. These factors are as follows:
(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 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. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
(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.
Consulting with a highly experienced family law attorney is crucial in understanding and tackling a full evaluation of the best interest factors in a custody dispute.
Custody is modifiable until your child is 18 or graduates from high school. In order to modify custody you have to show the Court that there has been proper cause or a change in circumstances since the entry of the last Court order regarding custody. A change in circumstances means that since the entry of the last order on custody, conditions which have or could have a significant impact on the child have materially changed. This is not always so easy to prove and we strongly encourage that you seek counsel before filing a motion to modify custody to discuss the legal requirements and process.
Parenting Time FAQ’S
Parenting time refers to a specific schedule of days and time the child spends with each parent. Because each family and situation is different, the specific parenting time plan can vary quite a bit from case to case, however, Michigan law provides that parenting time should be awarded in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time.
The preference of the child is one of the twelve best interest factors and while it may be taken into consideration, it is just one of several factors tat the court considers in making custody and parenting time decisions. The child also has to be of a sufficient age to be able to express a preference. If the judge wants to speak with your children regarding their preference for custody and/or parenting time, they will typically interview your child in a private meeting that neither the attorneys or parents are permitted to attend. This is to allow your child to not be subject to any unnecessary pressure from either party. The judge will not usually disclose what was discussed during the meeting but will use the discussion in making a final decision.
Similar to changing custody, parenting time is modifiable if there has been proper cause or a change in circumstances since entry of the last Court order regarding parenting time. The court also has to find that it is in the child’s best interest to modify parenting time. You cannot modify parenting time simply because you want to or because it is more convenient. There are certain legal standards that need to be addressed by the Court. Like changing custody, it is highly recommended that you seek counsel prior to filing a motion regarding a modification of parenting time.
Child Support FAQ’S:
In the State of Michigan, child support is based on a formula which considers each party’s income, the number of overnights each party has with the minor child, tax filing status, cost of child care, and health insurance expenses. There is an online calculator that is now available to the public and you could simply search for the Michigan Child Support Calculator online, enter your information and try to get a general idea of your support obligation. Keep in mind that there are a lot of intricacies and details to be considered when using the formula and it is important to discuss this with an experienced family law attorney to find out if your calculations are accurate.
No, but it is possible to deviate from the Michigan Child Support Formula if there is proper cause shown to the Court to allow you to do so. The child support you receive from your child’s other parent is not your money – it is your child’s money, therefore, the court will not allow you to forego receiving child support from the other child’s parent if the Michigan Child Support Formula indicates that you should be receiving funds. Deviations depend on the specific facts of your case and you should consult with an attorney before attempting to make any agreements regarding deviations.
Child support is modifiable based on a change in circumstances since the entry of the last court order. This could mean a decrease or increase in income, a change in parenting time, or an increase or decrease in the cost of health insurance or childcare. The birth of another child by one party may also cause a change in child support. You can modify child support based on an agreement between the parties or by filing a motion.