Legal Advocacy To Help You Make The Right Decisions For Your Family
At Richard Galat, PLLC, I will provide you with experienced, knowledgeable and focused legal representation to assist you in making the decisions that are right for your family’s future.
A brief description of the issues involved in most family law cases are listed below.
- Divorce: Michigan is a no-fault divorce state, meaning that you do not need a specific reason for a divorce to be granted by a judge. Once a case for divorce is filed, a court will end the legal union upon a showing of the legal standard of “a breakdown in the marital relationship such that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved”. The terms of the divorce and resolution of specific issues comprise the litigation process. Although fault is not necessary to seek a divorce, it may be addressed as part of an equitable property settlement. Michigan does not recognize common-law marriages, which may result in property disputes that are outside of any marital estate and not generally related to family law.
- The most common issues in a divorce case include child custody, parenting time/visitation, child support, spousal support/alimony, and division of marital property and debts. With minor children, a mandatory six-month waiting period is required from the date of filing a verified complaint before a divorce may be finalized. For good cause, a court may shorten that period if it is in the best interests of the minor children to do so. The local friend of the court office will be involved in your case if there are minor children. Friend of the court services assist with custody, parenting time and child support disputes. It is possible to opt out of friend of the court services, but that is a decision that should not be taken lightly and only with a comprehensive understanding of what rights and services are waived. Without children, the waiting period for a divorce is only two months from the filing of the verified complaint.
- Child custody: There are two types of custody, legal and physical. Legal custody is the decision-making authority for major health, education and welfare issues involving children. Most divorced parents share legal custody unless there are reasons for a parent to be excluded from such decision-making authority. If two parents were never married, legal custody is usually only awarded to a mother. Physical custody usually defines where the minor children primarily reside. Both types of custody can be with either parent individually or jointly with both parents. Even with joint physical custody, there may be a need for a primary residence to be established for the children to have one home base and stay in a particular school district. Physical custody does not define the amount of time the minor children spend with each parent, although it is part of the equation. The time with each parent is called parenting time. Custody is determined based upon the best interests of the minor children as defined by specific factors set forth by statutory Michigan law.
- Parenting time: Also known as visitation, is how much time each parent spends with the minor children in their respective home. Since October, 2008, Michigan law has required for the exact amount of overnight periods each child spends with each parent to be specifically identified. The overnight numbers are then used in the state guidelines for calculation of child support. However, just like a custody determination, the best interests of the minor children is the standard for determining parenting time with a mother and father. Numerous factors may be considered in determining a proper parenting time schedule, including each parent’s work schedule, the children’s school and extracurricular schedules, and distance between each parent’s residence. In certain circumstances, it is possible to have restrictions on parenting time if the children are subject to inappropriate experiences during parenting time of one or both parties. During each parent’s scheduled time with the minor children, that parent is usually permitted to make the day-to-day decisions while leaving the major lifestyle decisions according to a legal custody determination.
- Child support: Michigan has devised a statutory formula for calculating the amount of child support to be paid by one parent to another. Factors include each parent’s respective income (or “imputed” income and ability to earn if a person voluntarily reduces wages to avoid support), and the number of overnights in each parents’ parenting time. Support is broken down into base support, ordinary health care (currently at $345 per year/per child for expenses which the support recipient will spend on deductibles, co-payments, and uninsured or extraordinary health care costs), and child care expenses for young children in a proportionate amount. Additionally, any health care insurance premiums (health, dental and optical) paid out-of-pocket by a parent are credited to the support amount. Your tax and marital status, and your children from other relationships may have an effect on the support you pay or receive. The Michigan Child Support Guidelines also provide for an apportionment of “uninsured or extraordinary” health care expenses over $345 per year. Parents may deviate from the support guidelines, but any amount which is different from the guideline support amount must be approved by the court as in the children’s best interests. Child support is generally paid through income withheld from one parent’s wages to the friend of the court central disbursement unit and then directly deposited into an account for the recipient. All support is calculated on a monthly basis, although it will be paid in accordance with the pay periods (e.g. weekly, biweekly, monthly) of the party responsible for support.
- Modifications: Custody, parenting time and child support are all issues that must be determined in any divorce case with children, but may be modified after entry of a judgment upon showing a change in circumstances from entry of the order and until the minor children are outside the jurisdiction of a court, usually either at age 18 (or up to age 19 1/2 if the children remain attending high school and living with the custodial parent). Child support may be reviewed every three years upon request to friend of the court without cause and at any time upon showing a change in circumstances.
- Paternity: Any child born during a marriage is presumed to be a child of the marriage. Accordingly, paternity is normally not an issue in a standard divorce proceeding. When a child is born out of wedlock, paternity can be established at birth by an Affidavit of Parentage (which usually provides for sole legal and physical custody on behalf of the mother) or upon entry of a court order by consent agreement or after a biological paternity test after DNA analysis. Once paternity is established, then the issues of custody, parenting time and child support may be addressed between the parents in the case. There is no property division involved in a paternity case as there is no marital estate to apportion.
- Spousal support: Spousal support is commonly called alimony, and may be an issue in a divorce case. It is a determined by informal guidelines utilizing many factors, including the parties’ respective income (or ability to earn income), age, educational background, health, as well as length of marriage among others. The guidelines provide for an exact monthly or annual amount, but the actual length that support would be paid is provided in terms of levels: none, short term, medium term, long term or permanent. Spousal support, if applicable, will be considered taxable income to the recipient and a tax deduction to the payer. Spousal support must be determined in an initial divorce case. Once it is waived it is forever barred. It is common for spousal support to be considered in a divorce case yet waived by both parties after being included in the ultimate division of marital property. If a court orders spousal support, it is then reviewable depending on a change in circumstances. Death or remarriage of the recipient of spousal support will terminate the payment obligations.
Property Settlements In A Divorce Generally Divide The Entire Marital Estate Equitably
In any divorce case, the property and debt acquired during the marriage must be divided accordingly. Property usually includes the marital residence and other real estate, vehicles, retirement accounts (pensions, 401(k)’s, IRA’s, etc.), stock and other investment accounts, household furniture and furnishings, each party’s individual personal property, and other high-value personal property as well as debts. It may be necessary to obtain expert valuations and appraisals to determine the current value of property which must be divided. The property division will be based upon the facts of an individual case and divided equitably.
There is no standard division as the financial circumstances of the parties at the time of the divorce is important as to who can afford to maintain the asset, e.g. mortgage payments, vehicle lien payments, property taxes, etc. No matter whose name is on the asset or debt, it should be addressed as part of the divorce case. In some circumstances, property that was owned individual by a party prior to the marriage or inherited by a party during the marriage, yet not mixed with other marital property, may be excluded from the marital estate. It is important to know that a creditor or debt collector may pursue available remedies against you if a debt is in your name, whether individually or jointly, even though the debt is considered marital and divided in a Judgment of Divorce.
Most property settlements in a divorce case divide the entire marital estate equitably and not by each asset or debt equally. The bottom line values are what determine a fair settlement when taking into account the facts of your case. Assets such as pensions and retirement accounts may only be divided by court order if not kept wholly by the person whose name the account is in. Retirement accounts are generally governed by federal law and may take time to divide after entry of a final Judgment of Divorce. Early withdrawal of such accounts is subject to taxes, including a penalty percentage. However, some accounts may be withdrawn without penalty earlier than retirement age under a divorce situation. Whether the retirement account is a defined benefit pension (e.g. $1,000 per month at retirement date or age) or a defined contribution (e.g. a deferred compensation, 401(k), or IRA with a known total balance as of a specific date), it should be considered in determining the marital estate. The orders which divide the retirement accounts are called Qualified Domestic Relation Orders (QDRO). Once the property division is final, it usually cannot be revised absent a party having committed fraud, failing to disclose marital property, failing to abide the judgment terms or in other similar circumstances.
Understanding Other Important Family Law Terms
- Service of process: Once a party is served with court documents (either personally or by mail) a responsive pleading must be filed within 21 or 28 days, depending on the method of delivery. If you do not properly respond to a case filed against you, you may end up in default and lose the right to contest and negotiate terms of a final judgment.
- Ex-parte orders: A party may seek temporary “ex-parte” (meaning without a court hearing) relief as to several different issues from a court upon filing of a case. Such relief may order temporary custody, parenting time, and/or child support. Additionally, ex-parte relief may require one or both parties to maintain the status quo for payment of marital expenses or be prohibited from destroying, concealing or selling marital assets. If you are served with an ex-parte order and want to challenge it, an objection must be filed within a short period of time. A judge will then listen to oral argument as to both sides of the issue and either terminate or continue the order’s terms. While waiting for a judicial hearing on objections to an ex-parte order, the order remains in effect and it should be obeyed. Failing to timely challenge an ex-parte order may result in the specific terms remaining in place during the entire case and incorporated into final judgment or at the least, increased difficulty and expense in any attempt to reverse the ordered terms.
- Other children: If you have children from another relationship, those children are not subject to the court’s jurisdiction in your divorce case and remain under the jurisdiction of any previous court which determined custody, parenting time or child support. However, child support you pay or receive may need to be incorporated into a present case as part of a current support determination.
- Legal separation and separate maintenance: In certain circumstances, Michigan law allows entry of a Judgment of Separate Maintenance, commonly called a legal separation, which resolves all the issues similar to a divorce case while the parties remain married. The two most common reasons for such Separate Maintenance are if religious affiliation does not allow you to become divorced or for dependent health insurance concerns. Many courts are reluctant to grant a Judgment of Separate Maintenance absent proper cause and agreement of the parties. Should either spouse want to remarry, the case would be converted to a divorce. When such a case is converted to a divorce, the prior litigated issues generally are not redetermined absent a change of circumstances for custody, parenting time and child support. Property division and spousal support are generally considered final in the initial judgment.
- Court jurisdiction: The family division of the county circuit court where one or both of the parties reside have exclusive jurisdiction over divorce and other family law cases. However, if the parties have resided separately as stated below, it is possible for two different courts to have concurrent jurisdiction. You must reside in the state of Michigan for six months and the county in which you want to file your case for 10 days before initiating a case. Residence generally means change of domicile with the intent to permanently reside in the county. The family division is comprised of circuit and probate court judges who exclusively hear family law issues.
- Settlement/mediation: Most divorce cases are resolved through settlement and entry of a consent judgment. If not, a judge will hear the issues and determine where your children live and who receives what assets and debts, among other things. Many courts will require your divorce case to be mediated by a professional who is specifically trained in family law issues prior to any scheduled trial date in attempt to resolve the contested issues.
- Risks of trial: Settling the issues in family law case allows you and your former spouse to agree on the terms without a judge telling you what you must do with your family. A common statement is that “a bad settlement is better than a good trial.” This may be true both in terms of the financial cost of litigating a case and the emotional cost having your children deal with a divorce dispute. Resolving issues may be in the best interests of your children in the future but not in your best interest financially. Whether a settlement is fair under the circumstances of your case is for you and your attorney to determine. With settlement, an agreed upon result is reached. Having a court determine your fate could result in either a more favorable or less desirous decision. It is ultimately your decision to settle a case. Knowing your rights and the likelihood of obtaining certain results before a judge are factors to be considered.
- Domestic violence/ PPO’s: If there are allegations of domestic violence in your relationship, there are court orders to prohibit behavior that may be considered stalking or harassment called personal protection orders. It is possible to obtain a PPO in a separate court case from your divorce, custody, paternity or support matter. PPO’s allow for a police officer to arrest the party violating the order without a warrant if prohibited conduct is witnessed. If not witnessed, the party who sought and obtained the PPO may need to ask a court to determine that the other party has violated the PPO terms. Violation may result in incarceration for up to 93 days for contempt of court.
Contact Richard Galat, PLLC, For Efficient Legal Advocacy
It can be frustrating to resolve a conflict with a family member on your own. I have in-depth experience in all matters relating to family law disputes. I can help you work toward the most efficient path to solving your conflicts. Please call my office in Oakland County at 248-620-1300 or email me to schedule an initial consultation at no charge to you. I offer evening and weekend consultations by appointment if necessary.