Divorce & Domestic Relations
Spousal Support. Unlike child support where the court uses a statewide child support formula to calculate child support, no such formula exists in Michigan when it comes to an award of spousal support. A court will award spousal support based upon a number of factors: the length of the marriage; the age and health of the parties; the needs of each party; the conduct of the parties during the marriage; the ability of a party to be employed and to pay spousal support; the size of the marital estate awarded each party in the divorce; and the parties standard of living during the marriage.
Property Division. Michigan is not a “community property” state, a state where marital property is divided “equally” between the parties upon divorce. Instead, in Michigan, marital property is divided “equitably” (fairly), and the court has wide discretion in dividing marital property and is not bound by any precise mathematical formula.
In dividing marital property equitably, rather than equally, the Michigan courts consider a number of factors: (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, and (9) general principles of fairness.
In dividing property the courts will also consider whether the property is “separate” or “marital” property. Separate property is property retained by the property’s owner and, except under limited circumstances provided by law, is generally not considered part of the marital estate subject to division in a divorce proceeding. Thus, in Michigan, property such as inheritance, lifetime gifts, and personal injury awards are generally not part of the marital estate. However, separate property can lose its identity as separate property when commingled with the parties’ marital assets, for example, placing an inheritance in a joint bank account, or using the inheritance to purchase a marital asset (home).
Prenuptial Agreement. A prenuptial agreement is a legally binding contract made by two people before they marry. The agreement allows the parties to protect the property they bring into a marriage, resolve issues of spousal support, and determine the outcome of their divorce. The prenuptial agreement allows such property as inheritance, personal injury awards, and property brought into the marriage to be deemed “separate property” and excluded from the “marital estate” in the event of divorce.
Within three years of being divorced, most divorced people will remarry, and almost 70 % of second marriages will fail. Even when second marriages succeed, blended families can produce a different set of problem when a spouse dies. Where a second marriage, or a third marriage, or even a first marriage is on the horizon, a prenuptial agreement should be a primary consideration. Whether or not your estate is sizable, and whether your second (or third) marriage is a good one, the advice is simple, don’t leave home without a prenuptial agreement.
For prenuptial agreements to be valid and enforceable (1) the agreement must not have been obtained through fraud, duress, mistake, misrepresentation or nondisclosure of a material fact, (2) the agreement must not be seen by the court as unconscionable when signed; and (3) since the time the agreement was signed, facts and circumstances must not have changed so as to make its enforcement unfair and unreasonable.
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Divorce. Fifty percent of marriages end in divorce, and when divorce seems likely, protecting one’s interest becomes a paramount concern. For many parties to a divorce, their first exposure to the judicial system takes place when they find themselves in a divorce court fighting over matters such as child custody, child support, spousal support, visitation rights, and the division of property.
This life changing experience has devastating effects on families and often a time of extreme stress and anxiety for the client. Legal expenses can be extensive and the economic hardship that often follows a divorce, especially where there are minor children, can have life-long consequences.
Michigan is a “No Fault” divorce state, meaning that specific grounds for divorce are not necessary. A party seeking a divorce must only show that the marriage has broken down and there is no reasonable likelihood the marriage can be preserved. (Filing for divorce is probably proof itself that the marriage has broken down.) However, even though Michigan is a no-fault state, the court can still consider a party’s misconduct in its award of property.
Friend of the Court. The Friend of the Court is a governmental agency empowered to provide a number of divorce related services. The Friend of the Court conducts investigations and makes recommendations regarding custody, parenting time, and child support; it provides formal and informal dispute resolution services to settle custody and parenting time disputes; and it enforces custody, support and parenting time orders made by the court.
Custody. When the issue of custody is contested, the court will consider a number of factors in determining the “best interests” of the child: the emotional ties existing between the parties and the child; the moral fitness of the parents; the mental and physical health of the parents; domestic violence against the child or witnessed by the child; the capacity of the parties to provide the child with food, clothing, shelter and medical care; and the capacity of the parents to give the child love, affection and guidance.