DIVORCE, CUSTODY, VISITATION AND OTHER FAMILY LAW ISSUES

There is no more important work an attorney can do than assist people who have family problems. Whether the problem is custody, parenting time (i.e. visitation), or dividing property, the emotional toll this takes on people is enormous. When someone is having family problems, they need someone strong they can lean on.

I don't know how many times I have heard people make statements about family law which are not true. Some of them were true at one time, but due to a change in legislation are no longer true today. For example, people feel that if you leave the home, you have deserted your spouse. This is certainly not necessarily true.

The concern came from law which used to govern this state and dealt with grounds for divorce. Those grounds were fault grounds and included, among other things, incarceration, adultery, desertion, etc. The grounds for divorce in Michigan today are the no-fault grounds. Those no-fault grounds indicate that if a marriage has broken down and there is no reasonable likelihood of reconciliation, an individual may get a divorce regardless of whether the other party wants one or not. I include this here only to indicate that there are misconceptions about what Family Law is about.

Another misconception has to do with the amount of rights someone gains as a result of cohabitation without the benefit of a marriage. In 1957, Michigan abolished Common Law marriages. Nevertheless, people continued to live with each other without the benefit of marriage. They have children, they have assets which they own in common, however, if they believe that marriage is only a sheet of paper, they are sadly mistaken when the relationship breaks up. Alimony or spousal support is not available. Women do not have the same protections relative to property which has been acquired particularly if they have stayed at home to raise the children.

If one has made the determination that they are going to live with another without going through the marriage ceremony, they would be wise to have an agreement which sets out the specific agreements between the parties. These agreements are enforceable and are very important to the individual if things don't work out. They are also important when someone owns property in their individual name and the other person contributes to it, whether monetarily or otherwise.

Before entry into any such relationship, both individuals should consult with their respective attorneys.

1. Divorce. In Michigan, a divorce action can be brought if the marriage is broken down and the objects of matrimony are no longer being achieved and are unlikely to be achieved.

   One of the first questions I ask when I speak with someone relative to a divorce is whether or not marriage counseling has been tried. It is obvious that maintaining a two-parent home is far preferable than having the hassles that go with having one parent living on one side of town and the other person living on the other.

   Having said that, it is often impractical or even unnecessary to obtain counseling by the time someone gets to an attorney. Usually if counseling can be helpful, people go to marriage counselors before they go to attorneys. By the time they get to attorneys, usually counseling will not do much good except to assist people to get along with each other during the divorce action and afterwards.

   If there are children in a marriage, it is imperative that people not be bitter toward the other parent regardless of that other parent's fault. Children only have two parents and if bitterness develops that cannot help but impact the children. It is the responsibility of the attorney to work to advise his or her client what that client is entitled to and to not promise the client things that they are not entitled to.

   While the division of property is not precisely 50/50, that is usually the starting point in dividing the property. Having said that, the goal usually is to have property evenly divided.  Howeever, there still remains some problems. For example, who gets the house, what is the value of the house, who gets the furniture, what is the value of the furniture, and does used furniture have very much value?

   In Michigan, when there are minor children, there is a six month waiting period from the time the Complaint for Divorce is filed until the court may enter a Judgment of Divorce. (This can be waived for good reason, although Michigan Judges are usually reluctant to do so.) If there are no children, the waiting period is 60 days.

2. Custody. The most bitter divorce actions usually occur when both parties want sole physical custody of the children (physical custody is the term used to designate where the child's principle residence is). In bitter fights, parents often do everything they can to undermine the other parent. It is the attorney's duty to minimize this, or to see to it that this doesn't happen.

   There are some cases where joint physical custody of the children can work out. This may be true when the divorcing parents do not live that far apart and if they still get along.

   In almost all cases joint legal custody is appropriate. Joint legal custody requires parents to make joint decisions on questions of major importance to the children such as education, medical problems, etc.

   It is the best interest of the children which should be the controlling, and to the courts is the controlling authority for awarding custody.

3. Authority for awarding custody. Michigan has a statute in which the best interests of the children are defined. The citation on this statute is MCLA 722.23 (3).

   Always in custody disputes, I review the various factors which the legislature has set out in that statute. That statute contains such things as love and affection between each party and the child or children, the capacity of a parent to give guidance to continue the education and raising of the child, the ability of a parent to provide food, clothing, medical care or other care for a child, the moral fitness of the parties involved, the mental and physical health of the parties involved, as well as other factors.

4. Spousal support (alimony). The words "spousal support" are politically correct words which we now use in place of the word alimony. In Michigan, we do have spousal support and it is awarded in cases where there has been a long term marriage and one party makes substantially more than the other party does.

   Occasionally a court will award a very limited amount of spousal support for 2 or 3 years. This is rehabilitativespousal support so that a spouse may have time to complete an education or develop job skills.

5. Property division. In dividing property, the first thing that needs to be done is taking an inventory of the property. Not only the house, the car and the furniture, but also pensions, retirements, and perhaps a college degree. It should be determined what value should be placed on each asset.

   When the property was acquired is also important. If there was an inheritance used to purchase something, should this be treated as separate property or as joint property?

   Although this is a no-fault state for the purpose of whether or not a person may get a divorce (i.e. grounds for divorce), fault may be taken into account in determining whether there is a 50/50 split or a different ratio, perhaps a 60/40 split. If one harasses their spouse by openly running around with a boyfriend or a girlfriend, the courts may penalize that spouse in awarding more property to the spouse that was faithful. If one spouse was a heavy drinker, the court may feel that party drank up the family assets. I saw a judge calculate the amount of money a man spent on drinking and ordered in the property settlement, a monetary amount to be paid by that man to his wife for what he had spent on beer.

6. The Judge. It is most important that your attorney know what the judge's attitudes are on the various issues. He has a great deal of latitude on how he awards custody, grants spousal support or divides property. He can only be reversed by a higher court if he abuses his discretion or if he fails to follow the law. Therefore, if you are aware of what a particular judge may or may not do, you can make a better informed judgment on whether or not to settle a matter and how to settle it.

In conclusion, this article has tried to give a brief overview on some aspects of domestic relations law. There are many other areas, such as adoption, guardianship, premarital arrangements, child support, and domestic violence. All are decided in family court. If I can be of any help, please feel free to call me at 1-800-980-0507 or email me.

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