Family Law (General)
In the vast majority of cases in Oakland County, Macomb County or Wayne County, the parents settle the issue of custody and parenting time between themselves before a trial. In some cases in which the parents cannot work it out themselves and the court has to decide, there are a number of “best interest” factors the court will consider and decide which parent is favored by each factor.
In the end, the judge will add them all up and make the decision based on which parent meets most of these factors, including the custody arrangement. The parents should be able to come up with parenting time arrangements, but it they can’t do that, the judge will step in then, too.
In Michigan, child support is based on a formula; a computer program that takes into account each parent’s income and how many overnights the non-custodial parent will have with each child. The formula also takes into account other things, such as insurance, private school and the like and the computer spits out a number, which will be your child support.
In general, child support is not negotiable in Michigan, so the people who think they pay too much and those who think it’s not enough tend to be equally unhappy. Except in extraordinary circumstances, such as when parents have very high income levels or one parent has to travel a long way to see the children, the court will generally follow the child support formula.
That’s not always the case these days; in most cases the courts nowadays will take a pretty fair look at a number of factors, such as who takes the kids to doctor appointments, schoolwork and after-school activities, who meets with teachers, who cooks the meals and does the cleaning for them. If all of that is the woman, which is traditional, then obviously those factors still favor the mother, but it’s not automatic; if all of those duties are divided or lean toward the father, a good argument can be made for him as the primary caregiver.
Those are some of the problems that get litigated when there are disputes that parents can’t decide themselves. Both parents need to know that, and the mothers need to know that getting custody isn’t the sure thing it once was.
The smartest move anyone can make in a divorce is to hire a good lawyer who can give you straightforward advice designed to help you move on with your life, but right behind that one is the smart move to understand this is a long-term situation. You are not fighting a war that will be over at any point, with you declared the winner; one thing many people forget in divorce cases is that, when everything is decided, the parties will still have to deal with each other if they have minor children. It’s important to take a long-term approach and to avoid fighting in the future.
Another smart move is to be the first one to file for divorce, so that it’s not possible for there to be ex-parte orders filed against you that are unfair or unduly restrictive, such as those that award initial custody to the other party; it also gives you a chance to think about what would be best for you with regard to which county in which you want to file, if the parties are separated and living in separate counties. However, make sure you choose the right attorney; one who knows the county in which you file and can work with the courts really well.
As for stupid moves, the biggest mistake many people make is in thinking they can empty out the bank account and then file for divorce, which not only doesn’t work, but puts you on the judge’s bad side. Of course, another stupid move is to flee the state or county and file for divorce, which doesn’t work, because you have to establish residency to establish jurisdiction. Another huge mistake is to hire an overly aggressive attorney who just fights with everyone about everything; all such an attorney will end up doing is cost you a lot more to litigate.
Assuming that you want to divorce, the most important thing is to look to the future and not dwell on the past; focusing on the future makes it easier to get through this process and try to have a better life. People who are angry and determined to make up for years of pain and suffering rarely find their relief in the courthouse.
Two other keys are to be sure to see your children, and at least try to get along with your soon-to-be ex-spouse, especially with regard to the children. Those who concentrate on them realize there is plenty of time for everyone to see the kids and for the kids to have good, healthy relationships with both parents.
People need to realize that even if it’s not your parenting time, there is nothing to stop you from going to the kids’ activities, like school functions, baseball or soccer games, or even to drive them to school; things like that. There are many ways to put in parenting time, and for both parents to be regularly and heavily involved in the lives of the kids, and doing that usually works better for everyone. When it comes to keeping your sanity, divorce is one of the more stressful things people deal with; getting along makes it easier.
There is a lot on the line in a divorce, such as your finances, your children and your future, so a certain amount of stress should be expected, so surround yourself with positive people who want you to have the best future possible. There will be times when you have to fight, but you’ll achieve the best outcome for you and your children through brokered solutions and deals, and you’re best off surrounded by positive people, not negative people who enjoy fireworks.
Figuring out the answer to that question is why you have a lawyer.
When it comes to child support, as long as we know what the custody and parenting situation and the income of the parties, it’s pretty easy to get an accurate idea of how much child support will be. Alimony is a little trickier; it varies depending upon the judge, the length of the marriage, the amount of debt each party is carrying, which party makes more money and other factors that are used to determine the true level of need of the party seeking alimony.
In other words, the judge will factor in whether they have other sources of income, such as family support or a trust fund or things like that. It’s harder to figure out an alimony figure, but we can use software programs to give you an idea what the starting point of negotiations will be and where it may end up. You need the help of your attorney to estimate all that.
In Michigan, the court will try to determine which assets were obtained during the marriage and they will usually attempt to divide those assets equally, but you’ll need to know whether or not there are premarital assets or separate property such as an inheritance, which will probably have to be litigated, because if you can prove assets are premarital or separate property, the court will award that to you outside of the marital property. There are different factors in doing that analysis, but we can definitely help clients to identify which assets are separate and which assets are marital and help them try to protect what they are entitled to.
If drafted properly, prenuptial agreements are legal, valid and binding in the State of Michigan. In many situations, they help people to clarify which property is separate from marital property and, especially in certain situations, like second marriages, it can protect certain property for children from the first marriage.
Prenuptial agreements can also serve to clarify the wishes and the desires of the parties, so they are very valid and useful tool in many situations.
One of the most common myths is that primary custody is always granted to the mother, but that’s no longer the case; the courts conduct a thorough analysis to decide which parent should have primary custody; nothing is automatic. Another myth is that fighting in a divorce will bankrupt people; that doesn’t need to be the case, although people should be careful to hire attorneys who are trying to solve problems, not create more. Another common myth is that every case involves alimony, which is only awarded after a long marriage and if there is a significant difference in income.
One of the most important things people should know about no-contact orders is that if there is one against you, it only applies to you; if the other party tries to contact you and you reply, you’re still violating the no-contact order, regardless of who initiated the contact.
Be aware that people may be trying to trick you or trap you, so you need to follow the order, no matter what, and that means any type of contact, including emails, texts or phone calls, as well as attempting to use third parties to carry a message to the other person or to carry on a conversation; it means no contact. Following that rule is important, because many people who thought no one would find out they violated it end up locked up.
The entire case can be settled during mediation, which is a process involving each party with their attorneys in separate rooms and a mediator, usually a private attorney, going back and forth between the two and negotiating the issues with the parties. If the parties make a deal on all issues, the mediator will record the terms of the settlements, place it on the record and everybody will verbally agree and then sign a written agreement. That way the settlement is binding, even if someone wants to change their mind the next day. About 50-60% of cases are settled through mediation.
People use domestic violence charges against the other party all the time, whether there is a conviction on the record or there are only charges. In most cases, the judge will scrutinize the claims carefully, but such incidents can be used against you if convicted, which is why, if you are charged with domestic violence, you should fight that case and beat it, if at all possible. If it’s not possible, you should make sure the record clearly indicates the seriousness of the charge, especially if it was minor, because in a divorce, the other side will try to make sure it’s held against you.
Ideally, one of the best ways to avoid an ugly divorce will be to have two lawyers on a case who are trying not to make it an ugly divorce. They should both counsel their clients on the benefits of avoiding ugliness and all of the benefits of making sure it’s not ugly, including the lower costs, the personal and emotional benefits and the benefit to the children among others. Aside from that, keeping your eye on the future and not the past helps people avoid ugliness.
One great way to avoid ugly is to understand that divorce is an extremely emotional experience, with situations that are sometimes complicated and contain facts that are difficult to deal with, and that means having an attorney that understands that spending time with the client is important, and not just the cheapest divorce attorney you can find. Someone who knows the situations and the law, and who can plan for the best possible outcome is important, and price shopping for a lawyer will probably turn your divorce into an ugly matter and is probably a big mistake.
Anytime a parent wants to move to another state, either during or after the divorce, they need the court’s approval in the form of a change of domicile and it takes time for the court to process those requests. You can’t file a motion for change of domicile in August and expect to take the kids with you in September unless the other parent consents. The court will do an analysis of what’s right for the kids and the effect on the other parent’s relationship with the children, as well as the costs of the children having to travel.
There are a number of factors the court will look at in deciding whether or not to go along with this move, and the way it is presented is very important, as is how it is defended if you’re trying to stop the other parent from moving. These are very serious matters that take time to process through the court, so as soon as a party knows they might move, they should to consult a good attorney to help them with that issue.
Michigan is a no-fault divorce state, which means the court really doesn’t get too involved in determining who is at fault for the divorce. With extramarital affairs, the court feels there are two sides to every story and they don’t know the whole history behind the relationship, so they’ll only want to know if that alone is responsible for the breakdown of the marriage and won’t get into it otherwise.
In some cases, it can make a big difference when it comes to settlement, because it charges one side of the marriage emotionally and often makes their attitude more difficult to deal with. These types of situations can have a big effect on divorce cases, but it has little to do with the judge; it’s more an issue between the parties.
If you have children, if you have assets or if you have retirement programs, then you have a lot to lose in a divorce if you’re not properly protected and after the judgment is entered, it’s too late for you to go back and fix the judgment. You only get one chance to do it right, which means it’s very important for someone to be well-represented.
Finding the right attorney is important, and it’s important to understand that each person has their own unique needs and their own unique personalities. For example, one person will communicate better with one lawyer than another and vice-versa; it all comes down to making sure you have someone with experience in your jurisdiction, who knows and understands divorce law and who you feel comfortable with. You have to feel comfortable with them and the advice they are giving you; it’s a personal preference in many ways and you should take the time to talk to several people and put some thought into making your decisions.