|
Protect
yourself! Divorce is a complicated process and everyone getting a
divorce needs an attorney. We represent clients in the following Divorce
and Family Law :
-Divorce/Legal Separation. -Custody & Child Support.
-Property/Pension Rights. -Alimony.
-Parenting Time -Post Judgment
modifications.
-Paternity -Friend of the
Court Issues.
The
attorneys at Sumner & Associates, P.C., have experience with family law
issues such as divorce, alimony, annulment, legal separation, child
custody, child support, domestic violence, shared assets and other
aspects of the painful divorce process.
Family law deals with many emotional issues affecting
the entire family. These include dissolutions of families brought on by
divorce and legal separations and happy events such as adoptions. Our
aggressive advocacy, legal advice and representation may ease many of
the stresses that are placed on your family during these times.
Your lawyer can provide legal assistance in family law
and should negotiate with your spouse or the opposing attorney if that
is your wish. Your lawyer will understand the tax effects that the
financial decisions you make will impose. Your attorney should prepare
and share with you the strategy for your case.
You should contact a Sumner & Associates, P.C.,
family law attorney, who knows the the laws, the Family Courts and the
protections that are available to you. The Ron R. Sumner, LL.M has been
practicing Family Law for 42 years in Southeastern Michigan and Scott J.
Sumner has been practicing Family Law for 14 years in Southeastern and
Northwestern Michigan. Call us now for a consultation to discuss your
family's concerns about your legal situation.
ALL ABOUT DIVORCE
Grounds For Divorce
Michigan is known as a "no fault" divorce state; however, the words "no
fault" may be misleading. If the parties reach a final settlement on all
issues, fault is not a factor. If there is a dispute about alimony,
property, support, parenting time, or custody, fault may become an
active ingredient in resolving these issues. For this reason, your
attorney may go over the indiscretions of the parties with you.
Basically, Michigan has one ground for divorce: "There has been a
breakdown of the marriage relationship to the extent that the objects of
matrimony have been destroyed and there remains no reasonable likelihood
that the marriage can be preserved." In court, some judges require only
a recital of this assertion. No details need to be provided.
Legal Separation
In Michigan, we have legal separation that is known as "separate
maintenance." This arrangement is seldom done. The procedure is similar
to a divorce, except that neither party may remarry. The law states that
if one party institutes a separate maintenance suit and the other party
files for divorce, the court will only consider the case as a divorce
matter and cannot enter a judgment of separate maintenance.
Annulment
We also have annulment proceedings in Michigan, which invalidate a
marriage. Marriages may be void from the outset or be voidable,
depending on the circumstances. The grounds include incapacity to marry,
such as insanity, bigamy, under age, or any type of fraud that goes to
the heart of the marriage. Parties wishing an annulment must not
cohabitate after having discovered the grounds for the annulment of the
marriage.
If you have any questions about separate maintenance or annulment,
please ask us. The following materials basically concerns divorce
(though there may be similarities between divorce and separate
maintenance and annulment actions).
Divorce Procedure
The initial filing of a divorce case may include the following
documents:
1. Summons. This document notifies the other spouse that a
suit has been started. He or she has 21 days, if personally served in
Michigan, to respond or a default may be taken (28 days if served by
mail or if the other spouse lives outside of Michigan). If a party is
defaulted, he or she may not be allowed to participate in the
proceedings.
2. Complaint. This document states the names of the
parties, where, when, and by whom you were married, the names and
birthdays of the children (if any), the wife's and husband's names
before marriage, the length of residence in the country and state, the
date of separation, the grounds for divorce, a statement as to property,
whether the wife is pregnant, and the relief requested. A party must
reside in Michigan for at least 180 days and in the country where the
suit is started for at least 10 days. There are some exceptions to the
residency requirement.
Affidavit of Service and Return of Service. This is filed when service
of papers on the spouse is made.
3. Affidavit of Previous Suit. This informs the
court as to whether the parties have filed for divorce before or had any
case in another court.
Statement to the Friend of the Court. This is to inform the Friend of
the Court of the essential facts (it is unnecessary in cases where
Friend of the Court services are not required).
4. Affidavit. Another affidavit lists the child's or
children's residences during the past five years and states that no
custody action involving the child is pending (it is only needed when
minor children are involved).
5. Record of Divorce. This is a statistical record
required by the Michigan Department of Health.
Injunction. This is only requested when needed to restrain a spouse from
committing certain acts. Your attorney will explain this procedure to
you in detail and ask if you want an injunction.
6. Ex Parte Orders. These may be obtained for
temporary custody, support, etc. A timely filed objection to the ex
parte order will negate the effectiveness of the order until a hearing
on the matter.
7. Affidavit for Ex Parte Order. This sworn statement
affirms the facts stated to obtain the ex parte order are true.
8. Circuit Court Filing Fee. The court filing fee
will be between $180 and $230, as of October 1, 2004. There is also a charge for serving
papers. Later on, there may be other costs for services, such as the
cost of appraisers, actuaries, accountants, depositions, etc. You will
be advised before any of these expenses are incurred. There may also be
Friend of the Court and judgment fees.
9. Notice of Hearing, Praecipe, Motions, and $80-100 Filing Fee.
These are required for any motion that requires a hearing. A motion
is a request to the court for some type of relief. A praecipe is a court
form requesting that the matter be set for hearing. Notice of hearing
advises that a hearing will be held.
10. Judgment of Divorce. This is the final document that
grants the divorce and states the terms of the divorce. When there are
children involved, a $40 fee is required.
Procedure
The plaintiff is the party who starts the lawsuit. The defendant is the
person against whom the suit is filed. The divorce is resolved by the
family division of the circuit court. The office of the Friend of the
Court makes recommendations for spousal support, child support, custody,
and parenting time. This office also collects and distributes the
spousal and child support payments. If may also request enforcement of
court orders dealing with child and spousal support as well as parenting
time. The court may use the Friend of the Court for other miscellaneous
duties, including a recommendation on property distribution.
After the complaint and summons are filed and served, the defendant may
file an answer to the complaint, which is a paragraph-by-paragraph
response to the complaint. Once the answer is filed, the case is
contested. If no answer is filed by the defendant, an order of default
is entered, indicating the defendant's lack of response. The matter
becomes an uncontested divorce case. If the case is contested, the
defendant may not only answer the complaint, but also file his or her
own counterclaim. This counterclaim must be answered by the plaintiff.
Timing
A divorce cannot be granted in less than 60 days. When there are minor
children, the parties must wait 180 days. However, the six-month period
may be waived under certain circumstances. No divorce is granted without
a court hearing to determine the truth of statements made in the
complaint.
Temporary Orders While Your Case is Pending
Temporary orders for custody, child and spousal support, mortgage
payments, medical payments, parenting time, injunctions, and other
relief may be requested at any time after your case is started and
before a judgment of divorce is entered. A temporary injunction can
restrain a party from doing something. There are two types of
injunctions to deal with violence: one authorizes immediate arrest
(criminal); the other provides for an appearance before the judge to
determine what action should be taken (civil). There is also an
injunction restraining a party from selling, disposing of, or
dissipating assets. Other types of injunctions may be requested. Child
support, custody, mutual injunctions, and personal protection orders are
usually granted to the plaintiff without a hearing.
Temporary orders for child support are usually based on a
state-recommended chart. Generally, spousal and child support is based
on need and ability to pay. The lifestyles of the parties are also taken
into consideration. For child custody disputes, you will be advised to
study the 11 specific factors listed in the Child Custody Act (see Child
Custody below). The procedures and preparations for such a case are too
involved for this discussion and must be left to further discussions
with your attorney.
The court may also award temporary fees to assist a party with his or
her costs of obtaining legal services. This is usually obtained in the
same way as any other motion. Sometimes it may be part of a motion
requesting other relief.
Working Towards Settlement
While your case is pending, your attorney will be defining the issues
and trying to resolve them. Your attorney will also attempt to find the
net worth of the parties and the general financial status of the family.
A verified financial statement or interrogatories may be sent out
requiring answers from the recipient under oath. Complete financial data
is usually requested. Depositions may be taken (with consent of the
client) to obtain further information from the other spouse or from
those that have the needed information. Appraisers, actuaries (if
pensions are involved), accountants, or behavioral professionals may be
used (with the client's prior consent). You and your attorney, after the
discovery work has been completed, will set final goals you wish to
obtain. This will not be done hastily, and you will be given an
opportunity to study the proposed settlement. Your attorney will advise
you on the likelihood of acceptance of your proposals or what a court
may do.
The attorneys may call a meeting, with both parties present, and try to
resolve as many issues as possible. This is a voluntary process. Either
party may decline to attend.
If settlement is reached, the parties will be asked to sign a property
settlement form containing all the provisions of the settlement. The
parties may be required to approve the settlement in court, before the
judge, after it is placed on the record.
Judgment
The judgment of divorce is the most important document you will receive.
After a settlement is reached and/or the case is tried, the judgment of
divorce will be entered by the court as your final decree granting you a
divorce. It will also contain clauses dealing with such issues as
spousal support, custody, child support, parenting time, insurance,
dower rights, property settlement, and other miscellaneous clauses. If a
settlement has been reached, you must carefully read and examine this
judgment and have your attorney explain it to you before you approve it.
Spousal Support
Spousal support, also called alimony, is a sum of money usually paid by
one spouse to another spouse for the support and maintenance of the
spouse. The factors considered by the court in awarding spousal support
are as follows:
1. Past relations and conduct of the parties
(fault)
2. Length of the marriage
3. Ability of the parties to work and their
respective incomes
4. Source and amount of property awarded to the
parties
5. Ability of the parties to pay spousal support
6. Present situation of the parties
7. Needs of the parties
8. Health of the parties
9. Prior standard of living of the parties and
whether either is responsible for the support of others
10. Age and educational level of the person claiming spousal
support
Generally, judgments of divorce in which spousal support is not granted
must either expressly reserve the question of spousal support or rule
that neither party is entitled to spousal support.
Regular or periodic spousal support or rule that neither party is
entitled to spousal support. Regular or periodic spousal support clauses
in the judgment of divorce of divorce ore modifiable at any time. When
limitations are placed in the judgment regarding modification, it is
questionable whether or not these limitations will be honored b the
court. Spousal support may be increased, decreased, or canceled. A
modification is based on a showing of a change in circumstances that
warrants the modification.
Regular or periodic spousal support is usually taxable to the recipient
and is deductible by the payer. The phrase "payment until death" must be
part of the spousal support clause in order for it to be considered as
taxable spousal support. This type of spousal support is not
dischargeable in bankruptcy. Qualifying clauses such as "payable until
remarriage" may be included.
Spousal support is usually paid through the office of the Friend of the
Court. This enables a party to obtain an accurate record of these
payments. Also, it makes it easier to request assistance from the Friend
of the Court in the event that payments are not forthcoming or a spouse
denies receiving payments.
The enforcement of regular or periodic spousal support payments is
usually instituted by an order to show cause. The procedure will be
explained to you by your attorney upon request.
Child Support
The custodial parent is entitled to claim the minor children as
dependents for all tax purposes. The parties may agree that the
noncustodial parent shall have this allowance and enter this agreement
into the judgment. If the noncustodial parent is entitled to the
allowance by the judgment, that parent must obtain each year, from the
custodial parent, a signed Form 8332, which must be filed with the
noncustodial parent's other federal income tax forms. Only the parent
taking the dependency exemption is entitled to claim the child tax
credit and the interest deduction and tax credits for post-secondary
education.
Child support is modifiable on the same basis as spousal support. This
support is usually ordered until the child attains the age of 18 years,
or graduates from high school, so long as the child has not yet reached
19 years and 6 months and regularly attends high school on a full-time
basis with a reasonable expectation of completing sufficient credits to
graduate from high school while residing on a full-time basis with the
payee of support or at an institution. Enforcement of payments is the
same as for spousal support.
Child support is based on a strict formula which considers the income of
both the custodial and non-custodial parent. Nonpayment of court-ordered
support may lead to a contempt of court citation, resulting in a jail
term or a suspension of the delinquent parent's occupational or driver's
license.
Every child support order paid through the Friend of the Court now
provides for the immediate and automatic withholding of child support
payments from any source of the payer's income, unless the court orders
otherwise or approves an agreement by the parties.
Child Custody
This issue is the most emotional and traumatic part of most divorce
cases. There is legal custody, i.e., the decision-making part of raising
the child; and physical custody, i.e., who physically raises the child.
The courts favor joint legal custody so that each parent has an equal
voice in making important decisions relating to the child such as
medical, educational, religion, etc. There is also sole custody or joint
custody under each of these headings. The basis for determining child
custody is "the best interests of the child." Due to the extensive
nature of custody disputes and the laws involved, this subject is best
left to an in-depth discussion with your attorney.
A party involved in a child custody matter should become acquainted with
the Child Custody Act and study and be prepared to discuss the following
factors:
1. The love, affection, and other emotional ties
existing between the parties involved and the child.
2. The capacity and disposition of the parties
involved to give the child love, affection, and guidance and
continuation of the education and raising of the child in his or her
religion or creed, if any.
3. 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.
4. The length of time the child has lived in a
stable, satisfactory environment and the desirability of maintaining
continuity.
5. The permanence, as a family unit, of the
existing or proposed custodial home or homes.
6. The moral fitness of the parties involved.
7. The mental and physical health of the parties
involved.
8. The home, school, and community record of the
child.
9. The reasonable preference of the child, if
the court deems the child to be of sufficient age to express a
preference.
10. The willingness and ability of each of the parents to
facilitate and encourage a close and continuing parent-child
relationship between the child and the other parent.
11. Domestic violence, whether or not it occurred in the
child's presence.
12. Any other factor considered by the court to be relevant
to a particular child custody dispute.
When there are custody disputes, the parents must be advised as to
joint custody:
1. At the request of either parent, the court
shall consider an award of joint custody and shall state why joint
custody may or may not be considered by the court. The court shall
determine whether joint custody is in the best interest of the child by
considering the following factors:
A. The
factors enumerated above.
B. Whether
the parents will be able to cooperate and generally agree concerning
important decisions affecting the welfare of the child.
2. If the parents agree on joint custody, the
court shall award joint custody unless the court determines on the
record that clear and convincing evidence affecting the welfare of the
child dictates otherwise.
3. If the court awards joint custody, the court
may include in its award a statement regarding when the child shall
reside with each parent or may provide that physical custody be shared
by the parents in a manner to assure the child continuing contact with
both parents.
4. During the time the child resides with a
parent, that parent shall decide all routine matters concerning the
child.
5. If there is a dispute regarding
residence, the court shall state on the record, in writing, the basis
for a residency award.
Joint custody shall not eliminate the responsibility for child support.
Each parent shall be responsible for child support based on the needs of
the child and the actual resources of each parent. If a parent would
otherwise be unable to maintain adequate housing for the child and the
other parent has sufficient resources, the court may order modified
support payments for a portion of housing expenses, even during a period
when the child is not residing in the home of the parent receiving
support. An order of joint custody, in and of itself, shall not
constitute grounds for modifying a support order.
As used in this section, "joint custody" means an order of the court in
which one or both of the following is specified:
That the child shall reside alternately for specific periods with each
of the parents.
That the parents shall share decision-making authority as to the
important decisions affecting the welfare of the child.
Child custody orders are modifiable. The court will consider the time
the child has lived in a stable custodial environment and what is in the
best interest of the child. It should be remembered that the child's
preference, though an important factor, is just one factor to be
considered in the 11 specific child custody factors cited above.
Parenting Time
Parenting time is generally granted to the noncustodial parent. The
judgment may order general parenting time, leaving it up to the parties
to decide the dates, or it may provide specific parenting time hours and
dates. If long distances must be traveled to exercise this parenting
time, arrangements can be made to share the cost. Parenting time rights
may be enforced in the same manner as rights to spousal support.
Judgments of divorce provide that the minor child may not be permanently
removed from the jurisdiction of the court without the court's approval.
To move with the child from Michigan, the custodial parent must petition
the court for an order. Parenting time orders may be modified on a
showing of a change in circumstances. If parenting time has been
wrongfully denied, the law allows this time to be made up and permits a
contempt of court action to be brought against the offending parent that
can lead to a fine or jail term. Failure to pay child support is not an
acceptable reason to deny parenting time.
Property
The parties usually arrive at a settlement of all their property rights
after negotiation. If settlement is not reached, the matter will be
decided by the court after the trial is concluded. Again, you are
advised that you must be absolutely sure that you understand and accept
the settlement as written or placed on the record in open court, because
property settlements may not be modified, except in cases of fraud,
clerical error, mistake, or gross unfairness in the initial trial. If
your property includes retirement or pension plans, your attorney, upon
request, will explain your rights under the qualified domestic relations
order procedures.
Property settlements in judgments may be enforced by execution,
garnishment, show cause proceedings, etc. Your attorney will explain
these procedures to you upon request.
In determining property issues, the court will usually consider the
following:
1. Length 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
9. General principles of equity
Generally, the property of the
marriage is divided 50-50.
|
