Legal Action and responsiveness
Divorce Action Review
What is divorce
What it affects
What you need to file
What you don't need to file
Discussion: Legal Argument
Child Custody and relevant standards
(directs to "simplifying custody"page)
- Court Orders
- Domestic Violence
- Visitation (Parenting time) Obstruction
- Child Support
- Show Cause
- Targeted Focus
Divorce is considered almost as painful as the passing of a loved one... And its reach extends well beyond its legal ramifications, and I expand on extra legal matters in the "Family Law: talking points" page of this cite... But this discussion focuses on the effects of this life changing instrument, with a simplifying clarification of what it legally means and how it works:
Legal Action and responsiveness
Clearly Communicate with your former significant other/your child(ren)'s other parent and candidly account for things (don't lie, exploit, misrepresent, or conceal things...). And treat others the way you would like to be treated… It's amazing how many "problems" including those that lead to legal disputes, wouldn't materialize if this rule was adhered to.
Respond to court actions filed against you in a timely manner: Failure to do as much may constitute an admission to an accusation, consent to a challenged provision, or a default to an entire action.
What is a Divorce?
Divorce is a dissolution of marriage.
What can it affect?
It can affect property obtained and debts incurred during the marriage (hence the term "marital" property or marital debt). It can also have an effect on tax liability, retirement accounts, spousal support, and more importantly, paternity and child custody (Child Custody: See the "clarifying child custody" page of this cite for more information about the governing components of child custody...) .
Briefly defining property:
Property can be characterized into two categories:
(i) Real property (land and buildings thereon with the intent to remain, which is inferred from the degree of difficulty involved in their removal: e.g., an ordinary tent (although it's easy to conceive of exceptions) may easily blow away or be taken down after its use, which is consistent with its general design; whereas, a four story house presumably requires more than a breeze to remove it, and therefore, the latter would be considered "real property," while the former "tent" wouldn't; and
(ii) "Personal property" (defined by what it isn't, as much as what it is): all (other) property that isn't considered "real" is considered "personal" (and which in the preceding example, would include the tent). This includes your money, car, keys, hat, jewelry, furniture, etc.
How is property distributed?
Property distribution: In Michigan, property distribution must be equitable, not equal --although there is a rebuttable presumption that an equal distribution is equitable. As to what "equitable" means: it's drawn from historic use in courts of equity, of which family law would fall under; and the term means or is supposed to mean "fairness." It can be broad (and often exploited...), and mean different things to different people... but it's no less understandable...
What you need to file for a divorce:
First, it may seem obvious, but you need to be married: dissolution of marriage (divorce) requires the existence of a valid marriage (we can expand on this during a phone call....). Second, a petitioner (person filing for divorce) who would also be considered the Plaintiff (or possibly counter-Plaintiff in the same action that they would be a Defendant and chose to counter-sue), would have to establish personal jurisdiction: the court's ability to adjudicate matters involving the parties determined on a geographic state-based scale... In Michigan a Divorcing Plaintiff must be a resident of the state of Michigan for at least 180 days prior to filing for a divorce) and venue requirements (a more localized version of personal jurisdiction that deals with county eligibility), which are based on "convenience" requiring a Plaintiff to be a resident of the county where the divorce is filed at least 10 days prior to the filing of the divorce must both be satisfied.
Procedural requirements include: A divorce complaint, containing among other things, clarification as to whether there's a pending action involving the subject matter or the parties in that or another jurisdiction; statutory language in a divorce complaint: "there's been a breakdown in 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"); whether there are children that are born or adopted during the course of the marriage and a declaration affirming the contents contained within the complaint.
In addition, a record of divorce and a summons and complaint that states among other things, that the respondent was served, and the number of days the respondent has to answer the complaint to avoid being subject to a default); and when children that are born or adopted during the course of the marriage are involved, you also need to file a: UCCJEA and typically a party information sheet). Also, to spare a filing fee, you can file an "in forma pauperis" which is latin for "fee waiver" (which as of 2019 no longer requires the applicant's signature to be notarized).
Note: This is FAR easier than many practitioners and some clerks try to get others to believe... Having worked with a court for years, I understand the temptation to officialize matters with an unnecessarily restricting formality that comes from trying to present authority to validate one self; but that's insecurity, and it's as easy to see as it is necessary to reject... I mention this in response to a number of clients that have reported mistreatment by some clerks who engage in some form of indignation or dismissiveness when asked about the simple mechanics of filing or to discuss minor filing issues (multiple clients have told me, when they asked certain Ingham County clerks to simply affirm if all needed documents were filed --which is precisely what they do on the day of hearings- certain clerks (not all) either try to add superficial tension by yelling, or indignantly blaming petitioners for making their "job difficult" -while criticizing them for doing things wrong (often for something as basic as filling out a part of a form, or having enough copies, etc.). But when asked what exactly needed repairing, the same clerks formally retreat to the ever popular resignation of "cannot give legal advice" while "losing it" over what they won't talk about. The irony: citing a statute-drawn position as a basis to not give legal advice (which is where they get the "cannot give legal advice" principle) comically, by their own standards, is an act of interpreting that statute, which can be a form giving legal advice; and if they argue that it isn't, then they would have inadvertently established a threshold or a bar by which their other administrative duties, including what they complain about (not filling out the right paperwork, copies, etc.) would be even more distant from purely legal advice and instead, more "administrative" (if interpreting a statute isn't legal advice, then neither is telling someone "please fill out that line" or "make more copies"), which makes that attempted "display of admonishing authority" even less applicable, more impractical, needlessly unhelpful and uselessly tense. But ridiculousness aside, don't feel bad if you didn't round up the right paperwork: these things are just a matter of familiarity; and I'd be happy to walk you through this.... Call me; we'll comfortably talk about something so understandably sensitive, without immaturity...
What you don't need to file for a divorce:
Outside of the deduction of what wasn't included in the preceding "need to file" provision: Marital fault: In Michigan: you don't need marital fault to get divorced; but it's relevant in a discussion about property distribution and spousal support...
Memo to colleagues (one aspect that's largely misunderstood): While there are numerous factors used by the Michigan legislature to determine property distribution, marital fault and infidelity are among the factors the court evaluates, consistent with an appellate case that weighs in on the topic... Yet, many practitioners strangely cite the same case they overlook... In a vast oversimplification, the case involved an over 70 % distribution of a divorcing couple's marital property issued to one spouse; and the Michigan Supreme court went out of its way to pronounce that the number on its face wasn't too disproportionate or unequal to uphold. Rather, the opinion commented on the disproportionate focus on marital infidelity; but it doesn't diminish the consideration of martial fault; rather, it raises other considerations (factors) to the relevant scale and import of marital fault... Indeed, the msct literally said, in unambiguous terms, that a number or percentage that proportionately (heavily) favored marital infidelity was precisely what the case wasn't about... And of course, to disclaim an unequal consideration to terms, doesn't mean that the result of that consideration has to be equal (...resulting scope and consideration used to determine it are not the same thing... and equal consideration doesn't mean that considerations have to yield an equal or evenly proportionate distribution). Moreover, in addition to the conceptual differences in both considerations and determinations, and a logical display of "not enough of something doesn't mean too much of something else," having a court touch on something that's contradicted in practice is literally counter-factual on behalf of those practicing; and this too should not be overlooked (indeed, certain courts don't weigh marital infidelity as heavily as others, and perhaps, cultural and personal reasons inform it... But to the extent that it's an effort to observe the laws before them, there shouldn't be any hesitation to account for what the legislature offered as more than a guidance on how to answer many important questions... And honoring that instruction requires something other than reading a limitation into an analysis that was predicated on doing away with such limitations. Accordingly, appeals are just as ripe in family law as they are elsewhere...
Spousal support or alimony payments made by one former spouse to the other for the purpose of providing financial support (I tend to view it as a method designed to equate the disparity in "lifestyle" (measured in money) between the divorcing parties, coupled with a detrimental reliance on behalf of the non offending spouse that the marriage was assumed to survive or be spared from the other party's misconduct which led to the marriage's dissolution... Eligibility factors include: the length of the marriage, disparity in financial circumstances between the parties, among other things, that can also be taken into account that also includes martial fault and whether it had a determinative affect on the can
Note: Failing to ask for this type of support before the divorce is finalized (if it isn't preserved in a divorce decree), bars the same from being requested at a subsequent time; and property transfers can also be considered classified spousal support to guard against them being discharged in a bankruptcy (see important provisions section of this page...).
Stipulations ought to be clear, and on the record to acknowledge their scope and facilitate their enforcement (when complaints are drawn from an alleged breach of a prior agreement between the parties that wasn't part of the record or otherwise court ordered, neither the agreement or its (alleged) breach are enforceable. Therefore, account for your stip on the record (to "make it count").
Document "off the record" agreements --especially those that stray from specific court ordered provisions (it can have a exploitation (false noncompliance allegations) deterring effect, by helping the parties account for things over which they either don't recall or have a conflicting, inconsistent or disagreeing recollection about).
Decrees (orders): remember to clearly, and precisely account for --among a wealth of other things- every right and every provision; for every concern, and for current and anticipated actions and overall goals (close note: whether it was in Las Vegas, Nevada or Michigan, the closer you looked at disputes, the more obvious it became that people don't generally disagree about the same thing... And agreements are much easier to get to than they seem).
Court Orders: Be mindful of the 7 day rule and the typical 21 day FOC objection periods (contact me to expand on this).
Common, but important clauses:
To be clear: all clauses or provisions are important, and legally competent vigilance is advised. The following are a couple of notes on common provisions that can be resourcefully used to preserve your rights and interests:
Implementation clauses: these provisions allow you to use the decree or court order (to the extent that it satisfies the obligations of the relevant agencies, that require, for instance, legal lot descriptions, and information contained in a title) as an alternative instrument to a title affirming ownership of property designated in that a decree: (for example, if adverse party fails or refuses to comply with a court ordered requirement to file a quit claim deed to a property or sign a car's title to you, there's language that we can include (implementation clauses or provisions) that allow you to file file a decree (court order) itself --in lieu of a quit claim-- with the relevant agency (whether it's the register of deeds and/or the car's title with the secretary of state, etc.
There are other provisions (e.g., bankruptcy provisions that allow you to preserve property and/or the right to be held harmless for debts; spousal support treatment of property allocation to shield your property from the effect of a filed bankruptcy, etc.) that we cab discuss and implement according to their applicability and benefits.
Obtain free legal representation in the criminal, family or appellate context if you are, or were recently --or are still- exposed to and are trying to obtain a break from domestic violence (please click on the domestic violence page of this site for helpful information and offered representation to those who can benefit from it); and likewise, for a candid discussion about some of the struggles faced by those exposed to domestic violence, please see the "talking points" and "protecting your children" pages of this site or click on any of the following links at "Areas of Practice:"
Keep in mind: Hearings have particular purposes and rules; they are not "free for alls:" Do not mistake the court for a stage to denounce all of your ex's (perceived) errors. To that end, you may have done your homework so-to-speak (e.g., you may have sought, obtained and preserved copies of texts, emails, etc.), and some of it may be useful in an upcoming hearing; but much of it may not be: your evidence must substantively align itself with the relevant scope and purpose of the hearing; and it must also be presented in a procedurally compliant manner in order for it to be admissible.