Michigan Family Law Articles

Anatomy of Divorce

• Counseling
• Choosing an attorney
• Role of the attorney
• Filing for divorce
•  Ex-parte or temporary orders
• Children and who will have custody
  • Legal
  • Physical

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What Should I Do With My Home in 2010 if I File For Divorce?

e have been going through some of the worst economic times since The Great Depression.  Numerous articles and newscasts have stated either that the housing market has bottomed out, or is still going down.  In Michigan, we have the most depressed housing market in the United States.  Other states, including Florida, California, and Arizona – just to name a few, are also going through some horrible economic times with regard to housing.  In the past, before the economy bottomed out, homes were a family’s most valuable asset.  In the last year and a half, that has changed substantially.  In many of my divorce cases, the marital home is no longer an asset, but is heavily encumbered by debt.  Many people purchased homes in the past ten years, expecting their home to become a piggy bank for future savings and retirement.  Sadly, this is no longer the case.  Many people were obtaining mortgages, followed by home equity loans and second mortgages, based upon numbers that no longer exist.

The key question that I ask many of my clients is “what do you want to do with your home”?  In the past, a home was often kept by the wife, if she had custody of the children, with the understanding that it would be sold in a certain number of years, at which point the husband and wife would share in any growth, based upon the market.  This is no longer the case.  I advise clients, even when there is equity not to become too enamored with a home.  If anything, this is a total buyers’ market, and it is the time to buy a home, not sell one.  If there is equity and it makes sense to keep the house, then that should be given serious consideration.  If there are other assets, then either the husband or the wife can keep the house by trading the equity off against other assets, including portions of savings, retirement accounts or perhaps another item of real estate.

Normally a divorce judgment and settlement agreement will have a clause that the person keeping the house shall make his or her best efforts to refinance and remove the other spouse’s name from the mortgage.  If there is little or no equity, this becomes a very difficult task and in some cases, it may be years before there can be a refinancing.

Let’s look at the situation where the house in “under water”, which I see in the vast majority of my cases.  There are still some options.  One option is that one spouse will keep the house, subject to the negative equity, with the understanding that there shall be some offset and consideration given in trading this negative asset for other property.  A second option is to try to sell the home, and work out a short sale with the bank.  This can happen in some situations, but bear in mind that if it is not handled properly, it can negatively impact your credit.

A third option is when the encumbrance is too large and the payments are overly burdensome, some couples will just agree to walk away from the home with the understanding that they will both have negative repercussions on their future credit.  In some cases, one party will stay in the house, without making any payments on the mortgage, until the home is actually foreclosed upon and then there is a sheriff’s sale, which in this economy, can take many, many months.  Banks are often reluctant to take back houses because they have a huge inventory of homes that they have been taking back.  To say the least, it is a very nasty situation.

In many of my cases, I work with bankruptcy attorneys on issues involving foreclosure, short sale and whether or not to attempt to go through a bankruptcy, especially if there is a second mortgage or home equity line, along with substantial credit card debts with not enough income to make it feasible to move forward without filing for bankruptcy.  These are issues that should be discussed with a specialist in bankruptcy, which will definitely impact upon the divorce process, as a bankruptcy takes priority over a divorce.

Even in situations where there is equity in the home, do not become overly enamored with your home.  Sometimes it makes sense to try to sell the home.  Every divorce should be handled on a case-by-case basis, bearing in mind that your situation is not the same as your friend or neighbor’s.  It is important to discuss all of these options with your attorney as the issue of the house is an important one and can impact upon your credit for many, many years.

Another point that I want to add is that even if you can afford the house, if it is going to take too much of your income to keep the house, it may be better to sell it.

Legal rights for same sex couples or couples of opposite sex who have lived together without benefit of marriage

The laws in the State of Michigan do not recognize either common law marriage or commitment ceremonies as same sex couples are not allowed to legally marry in Michigan. The question arises as to what happens when either same sex couples or heterosexual couples, who have lived together and co-mingled property without being marriage, breakup. I have handled both types of situations in my practice.

Even though they are not divorce actions and are not part of the family court, in certain situations there are legal remedies. I have had cases where people have co-mingled assets, have shared investments and have purchased real estate together. I have had other cases where there have been promises made but not kept. In these situations, there may be an action, based upon fraud or unjust enrichments, which are tort actions. They are based upon promises that are not kept or based upon situations where one person has invested a lot of money into real estate and the other person is saying, “forget it – you are entitled to little or nothing”.

As actions in tort for damages, based upon the lost of investment, loss of the use of funds, or unjust enrichment to the other party, a civil action can be filed and even a jury demand can be utilized which is unavailable in a divorce or other family law action. These cases go to the general docket and are not part of the family court.

In each of these cases, I have been able to successfully resolve them using one-person mediation, in one instance, with success. In the other instance, we went through facilitative mediation in the Circuit Court where a three-person mediation panel gave an award of monetary damages to my client who was suing the other party based upon fraud and unjust enrichment. These damages were then used as a basis for a settlement without the need to go to trial. These cases are unusual and require certain elements. I believe it is necessary that there be a long-term relationship. There must be investments made together or some type of promises which one party has relied on to his or her detriment. There must be some monetary losses which can be proven in a court of law that happened because of either a reliance on the other party or a reliance on the relationship. These are cases that must be handled on a case-by-case basis. It is important that you consult with an attorney who is experienced in family law and also understands some of the basic premises of fraud and unjust enrichment and/or breach of contract. These are interesting and unusual cases, and if you fall into any of these situations, it is important that you contact an attorney to discuss what remedies you might have, if any.

Here at Gornbein Smith Peskin-Shepherd PLLC, we are experienced, not only in family law, but in these unusual fraud and unjust enrichment cases based upon same sex living arrangements or couples who have lived together without benefit of marriage.

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Top 9 Reasons for Divorce in 2009

9. Economic Pressures, especially in these very tough, economic times. People losing jobs, businesses failing, houses with negative equity, and 401Ks drastically being reduced are causing extreme emotional pressure on people.

8. People growing apart and going in different directions. The question that someone should ask is when the children are grown, is this someone you want to spend the rest of your life with? Do you share enough common interests? Will there be a bond to hold you together once you reach an age for retirement? What do you want to do with the rest of your life?

7. Alcohol problems. Alcoholism is a common cause of problems leading to divorce.

6. Drug related problems, including prescription drugs. I have seen more and more cases with not only drugs, such as marijuana and cocaine leading to divorce, but also addiction to Vicadin and other prescription drugs.

5. Gambling problems. Over the years I have seen people lose their jobs, their marriages, their homes, and their professions due to addiction to gambling.

4. Addiction to the internet. This includes people who are on hour after hour, whether it is for shopping, for e-mailing, or just constant searching online to the exclusion of everything else.

3. Addiction to pornography. Addition to pornography is more and more common, and I have seen many cases in my practice. This will often lead to the next issue, which is infidelity.

2. Infidelity. If someone has an affair, can it be forgiven? Can people move on and rebuild? These are questions. Counseling is often critical if there is infidelity.

1. A total inability to communicate. When two people are on different wave lengths, often from the beginning. Perhaps these are people who should never have gotten married in the first place.

Top 9 Questions about Child Custody in 2009

9. Is child custody an issue in most divorces where there are minor children? In most divorces, custody issues are settled very easily. It is only a small percentage where custody becomes an issue.

8. Is there an age where a child can decide who he or she wants to live with? There is no automatic age in Michigan. Under the laws, a child can have input. The older a child is, the more input that child has. Many courts have held that they are not going to let a child make the final decision. So to speak, the “tail is not going to be allowed to wag the dog”.

7. Is there a presumption favoring joint physical custody? There is no automatic presumption favoring joint physical custody. Joint physical custody does not have to be 50/50. There are many arrangements where there is a joint or shared custodial relationship where one parent might have the bulk of the time during the school year, while the other parent has the bulk of the time during summer and holidays. The key is to have an arrangement that works and is consistent with the best interests of your child or children.

6. Once child custody has been set, can it be changed a year or two later? Child custody is always modifiable, but once it is set, it is much harder to change. The standard for setting custody is what is called by a preponderance of the evidence, which means just a slight shifting favoring one parent over the other. Once custody has been established, and there is an established custodial environment with one parent, the other parent must show by clear and convincing evidence that it is in the best interests of the minor child for a change of custody. This is a much higher standard than the standard for setting custody originally.

5. What are some reasons for changing custody? Some of the reasons include an abusive situation in one home. Neglect can be a reason, as well as problems with alcohol or drugs, or involvement with someone of the opposite sex where the children are being exposed to inappropriate behavior. Inappropriate access to the internet can be another factor. These are issues that you should discuss with an attorney, and the situations differ from case to case.

4. If custody becomes an issue after a divorce becomes final, how long does it normally take? A custody dispute can last for several months, or in some very complicated cases, as long as a year or more. There are some cases where people try to take each other back to court year after year because they cannot give up the fight, and are trying to hurt each other, often for psychological reasons. These are the worst situations. I tell my clients that you are putting your children in the middle, and the biggest losers in any custody dispute are your children.

3. How expensive is a child custody case? Child custody cases can be very, very expensive, and often are much more expensive than a divorce. It is important to consult with an attorney who specializes in family law, including child custody, to determine, 1. whether or not you have a case; 2. what the cost will be. An attorney will give you a range, because it is impossible to determine exactly what the cost will be, but it can run anywhere from several thousands of dollars to a multiple of that number.

2. Should I talk to my child or children before deciding whether or not to seek a change of custody? This depends upon the age of the child, and often it is best not to put the children in the middle or talk to them about this. It is a very serious proceeding, and often very difficult and complicated. I would suggest if custody and the possibility of a change is an issue, that you should take your children into counseling and perhaps a counselor working with the children, can guide you in that matter, bearing in mind that if there is counseling, the other parent must be advised of it.

1. Is sexual abuse a reason for change of custody? Allegations of sexual abuse, if they are true, is a very strong and urgent reason for a change of custody. Bear in mind that many cases, especially high conflict divorces, or high conflict situations after a divorce where custody and parenting time are issues, will involve allegations of sexual abuse, and there are many situations where they are false. This is a very treacherous area, and one, where you may have child protective services and even criminal proceedings involved. If there are false statements of sexual abuse, I have had situations where people who have made these allegations, have been charged with perjury and even gone to jail. This is an area that you should really talk to an attorney about and be very careful about, because for every allegation of sexual abuse, there are often cases where they have been fabricated and all that is happening is that the children are being put in the middle and often damaged. This is another area where you must consult with a very good family law attorney.

Top 9 Divorce Questions in 2009

9. Does it matter who files first for divorce? Generally it does not, and in most instances, the courts have no idea as to who is the plaintiff or the defendant. The only reason for filing first is if there is danger of a child being abducted, or there is a need for some immediate money, or a danger of assets being taken if a restraining order is not entered.

8. Can I select the judge for my divorce? No, you cannot. Judges are selected by blind draw.

7. If I had a prior divorce, will the new divorce go to the same judge? Normally it will, unless the judge has been replaced by a successor, as sometimes happens on the family court where judges will come and go after a number of years. The goal of family court is to have a judge handling all matters of a family, including divorce, child custody, and juvenile issues, so that the judge gets to know a family if there are a lot of problems from a legal perspective.

6. How long do I have to reside in the county to file for divorce?/How long must I be a resident of the State of Michigan to file for a divorce in Michigan? Either your or your spouse must be a resident of the county where a divorce is filed for at least 10 days prior to filing an action for divorce. You or your spouse must be a resident of the State of Michigan for at least 180 days immediately prior to filing an action for divorce.

5. How long will a divorce take in Michigan? If there are no children, the minimum time period is sixty days from start to finish if it is uncontested. If there are children, the minimum is six months, or 180 days, because the courts want you to think carefully about a divorce if there are children. If the case is settled in less than the six-month waiting period, many judges will waive the balance of the six months statutory waiting period, even if there are children, as long as the divorce is at least sixty days old.

4. If my divorce is contested, how long will it take? I usually tell my clients that a divorce takes from six to nine months if it is contested. The outer limit is normally a year, because the courts want all divorces finalized within one year from start to finish.

3. Is a divorce public record? All divorces are public record. Years ago, celebrities in Michigan could have their cases file suppressed so that they were not public record, but now all cases are public record.

2. Is my Judgment public record? A Judgment of Divorce is public record, but you can have a separate property settlement agreement which is incorporated as part of the Judgment of Divorce, but is not part of it, and is kept separate so that your settlement is not part of the court file, and therefore is no one’s business. If it is worded properly, it can be enforceable as part of the divorce, and this is something that you would have to talk to your attorney about.

1. If my spouse wants a divorce and I do not want one, can I stop it? No. Under the laws of the State of Michigan, a divorce is based upon the breakdown of the marital relationship to the extent that the objects of matrimony have been destroyed, and there remains no reasonable likelihood that the marriage can be preserved. If one party wants out, and the other party is opposed to it, there is still a breakdown and therefore a divorce must be granted under the laws of our state. In many cases, where there are sensitive financial issues, these should be in a separate agreement that is not part of the public record because your finances are no one else’s business.

NINE ITEMS TO THINK ABOUT AT THE END OF YOUR DIVORCE

9. It is important that you are fully advised of the consequences of any settlement, and that you understand the agreement. Remember that property settlements cannot be changed. Parts of the settlement regarding children, including child support, parenting time, and custody, are all modifiable in the future. Spousal support is normally modifiable unless it is set forth as non-modifiable, and that should be carefully considered as well, especially in our current economic situation where people are losing jobs so frequently.

8. If there is medical insurance and COBRA to be kept in effect, make sure that the forms are taken care of immediately because there is only a 30 day grace period, and then the rights may be waived.

7. Make sure that any deeds for transferring of homes or other real estate are signed and taken care of at once.

6. Make sure that any Qualified Domestic Relations Orders for transfer of pensions or 401Ks or IRAs have been properly handled and are taken care of as soon as possible. In this economy, when you are transferring funds from 401Ks or IRAs that are tied in with the stock market, it is important to make sure that you don’t have a set sum, but these are transferred based upon fluctuations in value up to the date of transfer so that everyone is protected.

5. Make sure that all life insurance is properly handled so that if there are to be changes in beneficiaries, or cancellation of insurance, this is taken care of as soon as possible.

4. Any credit cards that are to be changed should be taken care of as soon as possible.

3. Titles to motor vehicles should be transferred, and this should be taken care of as rapidly as possible.

2. Any meetings necessary for signing of documents or transfer of funds should be taken care of without delay because the longer things drag on, the harder it is to unravel any situation should there be problems. It is important to have a checklist and often a closing in a complicated case to make sure that everything that has been agreed to is taken care of.

1. All child support and spousal support orders must be in place. It should be done at once so the person receiving his or her support, does so in a timely fashion. In cases where there is a delay between the finalizing of divorce case and the actual entry of child support and/or spousal support orders, an agreement should be in place where there can be direct payments until the court order takes effect. Last, but not least, it is important to bear in mind that a settlement or judgment is as good as the parties are. If someone wants to find a loophole, or fail to honor the agreement or judgment, then that person will do so, no matter how well an agreement is drafted. This will result in more court appearances and litigations. It is important to have a good attorney help you through this situation. Everything should be finalized, and all of the steps taken care of as quickly as possible, so that there are no loose ends after the divorce is finalized.

NINE DO’S AND DON’TS REGARDING YOUR CHILDREN IN 2009

9. Do not bad-mouth the other parent to your children. Do not denigrate or speak poorly about the other parent in front of your children. Not only words, but also negative gestures can convey a tremendous amount to your children.

8. Do not talk about a divorce or other legal matter, to or in front of your children. Your children should not be involved in the legal proceedings at all.

7. Do not argue or discuss any issues in your case or issues involving you and your spouse or the other parent in front of your children. They should be left out of the situation as much as possible. Remember, they are the innocent victims of your divorce or other legal action.

6. Do not use your children as a messenger or go-between. Do not pass information through your children. Do not use your children to deliver letters or child support checks. This is not their function. Remember that you are the adults.

5. Do not use your children as a weapon against your spouse. Do not threaten or do anything to make your child uncomfortable, no matter what the situation is involving the other parent.

4. Do not alienate your child or children regarding your spouse or other parent. Alienating your child or children is reprehensible, and is one of the worse things that you can do. You will cause untold damage to your child or children, that will impact your child or children but also his or her ability to relate not only to the other parent, but to others in the future.

3. Do keep your child’s schedule and activities, such as sporting events, practices, birthday parties, etc. When you spend time with your children, you should normalize and do whatever the regular activities are. Remember, parenting time means that you are the parent.

2. Do be positive regarding the other parent. Being positive not only helps your child, but also helps your child with regard to future relationships.

1. Most important, do make your child feel loved. Your child has nothing to do with your divorce or other legal matter. Never forget that they have the right to be children. You are the adult. Too often adults forget this, and behave more childishly than their children. Remember that you want to be able to share important events such as a baseball game, dance recital, hockey tournament, religious events, graduation, or wedding, with your child or children being free to love each of you and being comfortable with each of you at these important events.

Sensitivity to Culture in Divorce

Twenty years ago, the majority of people I represented in family law matters were people who had been born in American. There were extremely few cases involving people who had not lived in the United States for at least one or two generations. Times have changed enormously, however, and so has the cultural population of people experiencing divorce in the Detroit area.

Read more: Sensitivity to Culture in Divorce

Prenuptial Agreements

Contemplating a marriage? Should you have a Prenuptial Agreement?

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