About Michigan Divorce, Custody, and Support

People don’t often enter a marriage planning for a later divorce. The process is difficult and emotionally taxing for all parties involved. It is important to have an attorney who is sensitive to and understands your needs, and who can formulate a plan to protect your rights and assets. Usually both parties suffer financially as a result of divorce.

"No Fault" Divorce

Michigan is a “no fault divorce” state, which means that Michigan residents can get a divorce without having to prove that the other party did something wrong. A trial court will grant a divorce if it finds that "There has been a breakdown in 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." However, "fault" may come in when dividing the marital estate and determining child custody.

When and Where Can the Divorce Be Filed?

In Michigan, the person filing for divorce- the plaintiff- must have been a resident of Michigan for at least 180 days, and must have resided in the county where the divorce will be filed for at least ten days prior to filing. The plaintiff can also file a divorce if the defendant meets those same residency requirements. There are few instances under which the 10 day county residence period can be waived.

What if the Defendant lives out-of-state?

If the other spouse lives in another state, the Michigan court can grant a valid divorce, but may be limited in its ability to divide property or determine custody and child support. However, it is possible for a spouse who lives in another state to consent to having all divorce-related issues decided by the Michigan court.
If there is a concern that a divorce action may be filed in another state or jurisdiction, you should consult with an attorney to determine whether it would be a good idea for you to try to file a divorce in Michigan. In many circumstances, it matters who filed first as the the divorce will be decided in the state where a complaint for divorce is first filed. This can result in significant difficulty and expense to a spouse who resides in another state.

Waiting Period

Under normal circumstances, where there are no minor children involved, the parties must first complete a sixty day "cooling off" period before a divorce will be granted. Courts can waive this period if the circumstances warrant, but in most cases the full waiting period will be observed. The waiting period is longer where child custody is involved.
If there are minor children, there is a 180-day statutory waiting or "cooling off" period before a divorce will be granted. While it is also possible for the court to find circumstances which justify waiving this period, in most cases the full 180-day waiting period will be observed. Usually there will be "temporary orders" entered for custody, parenting time (visitation), and child support, while the divorce is pending.

When "Fault" Matters

"Fault" can be relevant to the court when dividing the marital assets, or when assessing spousal support (alimony). However, usually "fault" circumstances will not dramatically change the division of assets. In most situations, you will need to decide if a five or ten percent difference* in the property division is worth the expense and conflict that comes with trying to prove fault. The time, money and effort can usually be better spent making sure that all assets are located, properly valued, and included in the marital estate, as opposed to trying to prove fault.
*Please note that although the five or ten percent difference is typical, in extreme cases courts have been known to award larger amounts, and on at least one occasion, the entire marital estate, to the wronged spouse.

How is Property Divided?

First, it must be determined if the property in question is the separate property of the individual party or is part of the marital estate. Examples of separate property are: inheritances, a business or asset owned prior to the marriage. Even if an item is deemed "separate property", the increase in value of the asset that happened during the marriage is considered to be a marital asset. Sometimes separate property owned before the marriage may be deemed to have merged into the marital estate. In addition, one spouse's separate property may be invaded when necessary to provide for the adequate post-divorce support of the other spouse.
The court will consider the following when dividing the marital estate:
  1. The parties' past relations and conduct;
  2. The duration of the marriage;
  3. The source of property;
  4. The parties' contribution towards its acquisition;
  5. The needs of the parties;
  6. The parties' earning ability;
  7. The cause for divorce;
  8. The age of the parties;
  9. The parties' health;
  10. The parties' life status;
  11. Necessities and circumstances of the parties;
  12. General principles of equity (fairness); and
  13. Additional factors deemed relevant to a particular case.

What about Spousal Support?

Spousal support is normally awarded within the framework of the division of the parties' property and assets. In certain situations, a trial court may order temporary spousal support while a divorce is pending, or may order support to be paid retroactive to the date the divorce was filed. A spousal support award can consider the amount of marital estate, and whether one of the spouses will have to liquidate assets awarded in the divorce in order to maintain a reasonable lifestyle. Spousal support may be appropriate where one spouse has sufficient income to preserve their share of the property settlement and the other does not.
There are two ways spousal support can be paid out- periodic payments or "in gross" (in a lump sum). Periodic payments are usually described as "rehabilitative" -short-term payments to help the recipient spouse get back on his or her feet, or permanent- ordinarily lasting until death, remarriage, or further order of the court. Periodic alimony can be modified by the court under certain circumstances, whereas alimony in gross ordinarily cannot be modified after judgment.

Factors to be considered in awarding spousal support include:
  1. Past relations and conduct of parties;
  2. Length of the marriage;
  3. Age of the parties;
  4. Ability to work;
  5. Present situation of parties;
  6. Needs of the parties;
  7. Health of the parties;
  8. Ability to pay alimony;
  9. Source and amount of property awarded the parties;
  10. Prior standard of living of the parties and whether either is responsible for the support of others; and
  11. General principles of equity (fairness)
There are unofficial spousal support guidelines available in Michigan. Courts will usually entertain calculations made under the guidelines, but the guidelines are not binding on the court. Some courts even adopt their own formulas that closely aligned with the guidelines.

What About Bankruptcy?

If there is even a remote possibility that either spouse will file for bankruptcy after the divorce, it is important to structure the property division and support award so as to protect the client spouse from the effects of the other spouse's bankruptcy.

What About the Children?

Just as divorce and child custody cases difficult and emotionally taxing for the couple, it can be extremely difficult for the children involved. It is important to be sure that they understand they are not at fault and are still loved and cherished.

Child Custody and The "Best Interest Factors"

When determining child custody, Michigan courts are required to evaluate the "best interest" factors to help determine the most appropriate custodial environment for a child.
Those factors are:
  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 to continue 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 considers the child to be of sufficient age to express preference.
  10. 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.
  11. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
  12. Any other factor considered by the court to be relevant to a particular child custody dispute.
The court will make specific findings for each "best interest" factor in the decision, but the court's findings are not tallied to result in a final score determining the “winning parent”. While one party "wins" under most of the factors, custody may be awarded to the other party based on a factor the trial court considers to be more important under the circumstances. For example, if a parent appears to wish to alienate the child from the other parent, that custody will be awarded to the other parent under a strong "factor j" finding, despite the many good qualities of the first parent. Similarly, "factor b" and "factor c" findings may be given considerable weight by a court, if a parent appears unwilling or unable to provide appropriate guidance or support.
“Morality" looks at how the parent's moral choices will affect the children. It is not intended to evaluate the parent's character outside of the context of the best interests of the children, and the ability of the parent to provide appropriate moral guidance to the children. A parent's involvement in a new romantic relationship following divorce or separation is not the type of "moral conduct" which concerns a court, unless that new relationship is not in the best interests of the children.

Can Custody Be Changed After the Divorce is Final?

Once a court has entered a custody order, it is not supposed to re-examine that order unless the party requesting custody be modified can establish a "change of circumstances" sufficient to reopen the custody decision. Minor children need stability in their lives, especially after that life has already been disturbed by the divorce. To maintain that stability, modification of custody will not be granted if there has been no significant change in their existing custodial environment.

What About Custody When the Parents Live in Different States?

Interstate custody disputes typically arise when a parent who lives with the children in Michigan files for divorce in Michigan, or when a parent who was divorced in a different state seeks to modify that state's child custody judgment in Michigan. In the first circumstance, a Michigan court will be able to grant a divorce and issue a custody order, but may be restricted in its ability to divide marital assets or to award child support without the other parent's consent to its jurisdiction. In the second circumstance, there are some relatively complicated rules which are meant to protect the jurisdiction of the court which issued the original custody order, which may prevent a Michigan court from modifying that order

How is Child Support Determined?

Child support is ordinarily calculated using the Michigan Child Support Formula. This is formula and, except in high income cases, does not leave much room for argument. Child support is usually paid until a child reaches the age of eighteen, or until the age of 19-1/2 if the child is still a full-time high school student. Parties can agree to pay more support on a contractual basis, for example if they wish to provide for their children's college education as part of the divorce agreement, or if they have a disabled child who will require support well past the age of majority.
When financial circumstances change for either parent, they can ask the court to modify the amount of child support. Usually, the modification will not be retroactive- that is, any change will ordinarily take effect as of the date of petition for a modification. That makes it important to challenge excessive or inadequate support as soon as the changed circumstances come to your attention.

What About Custody?

Michigan has two types of "joint custody"- "joint legal custody", where parents share decision-making responsibility in relation to important life decisions affecting the child, and "joint physical custody", which usually involves a more equal parenting time arrangement and shared responsibility for the day-to-day care of the child. A court has to consider joint custody if requested by either parent. Joint legal custody is most often awarded. Joint physical custody works best when the parents have a strong relationship and ability to communicate in relation to their minor children, despite the circumstances of their divorce.

Moving After a Custody Order

Custodial parents who are subject to a Michigan custody order are expected to ask the court’s permission before relocating the children to another state. Where the parents with either joint physical or joint legal custody live within 100 miles of each other at the time of the initial custody order, either parent must petition the court before they move beyond that 100 mile limit.

Do I Need a Lawyer?

You can file a divorce on your own. Some divorces are amicable and parties are able to come to agreements civilly, however, this is not the norm. You may start out getting along and agreeing on issues, but take it from someone who has been through this process, that can change quickly. You and your spouse are going through a hurtful and traumatic life change that can turn either of you into people you never thought you could be and civil situations can get ugly fast. Having an attorney will help protect your rights and interests in the divorce, as well as provide you a sounding board for dealing with the changes caused by the divorce.

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