In Michigan, there are two ways to end a marriage: (1) the death of a spouse and (2) divorce. Michigan is a “no-fault” divorce state. That is to say, the only ground for divorce is that the there has been a breakdown of 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.
Thus, issues of fault are strictly irrelevant to a Michigan divorce except that a party’s bad behavior may effect the division of property, child custody, and/or parenting time. For instance, if one party’s heavy drinking or drug use caused a breakdown in the marriage, a court may order a disproportionate property award. Similarly, if a party’s heavy drinking or drug use impairs that party’s parenting skills, a court may award custody to the non-impaired parent and/or diminish or restrict the impaired party’s parenting time.
Apart from the emotionally devastating impact of divorce anyone considering divorce in today’s economy must assess its financial impact. Many couples that file for divorce asserting that they cannot go on another day with their spouse later change their minds when they discover the financial impact. For instance, gone are the days of selling the marital home and splitting the equity after the sale. Frequently, a divorce leaves the party to whom the marital home is awarded with an untenable choice between refinancing a home that’s under water or selling the home at a loss.
Motions to change custody are extremely difficult to win and (consequently) rarely granted. That is to say, the court may only modify the custody arrangement if the evidence is clear and convincing that a change in custody is a child's best interests.
In determining whether a change in custody is in a child's best interest, the court is required to find that in the examination of the factors there is clear and convincing evidence of a compelling reason for a change in custody.
The Child Custody Act authorizes a trial court to modify child custody, support, and parenting time orders “for proper cause shown or because of change of circumstances,” and if in the child’s best interests. MCL 722.27(1)(c).
Notwithstanding the present custody arrangement, the first step is to determine whether an "established custodial environment" exists. An "established custodial environment" exists with the parent to whom the child(ren) look solely to provide guidance, discipline, the necessities of life, and parental comfort. If this is true of your situation, then you may have a strong case for primary physical custody.
In custody disputes between parents, the parents must be advised of “joint custody.” At the request of either parent, the court must consider an award of joint custody, and state on the record the reasons for granting or denying a joint custody request. In other cases, the court may consider joint custody. The court must determine whether joint custody is in the best interest of the child by considering the 12 “best interest” factors set forth in MCL §722.23.
On the other hand, if the parents agree on joint custody, the court must award joint custody unless the court determines on the record, based upon clear and convincing evidence, that joint custody is not in the best interests of the child.
In Michigan, division of marital property follows the rule of equitable distribution. Although there is no requirement that property awards to each party be precisely equal, there is a presumption that the division of marital property (as contrasted with separate property) will be roughly congruent. If a court departs from this presumption of congruence, it must explain its reasons clearly.
Many people have the misconception that spousal support is a thing of the past in Michigan, but the issue is raised in almost every divorce. Generally, spousal support is a useful tool, especially when we're representing a spouse in a long-term marriage or where there is a substantial disparity in income between the spouses. When divorce terminates a long-term marriage, spousal support is used in its traditional sense as support and maintenance of a former spouse who is unable to support himself or herself at a comparable standard of living due to years of financial dependence. The longer the marriage, the older the recipient, the less able the recipient is to support himself or herself due to lack of education, job skills, or on-the-job experience, the more likely spousal support is to be awarded.
A child has an inherent right to the support of his or her natural or adoptive parents. Parents may not bargain away a child's right to adequate support. And the parties may not usurp the court's statutory authority by agreeing to limit the amount of support by restricting future modifications of support.
All child support must be calculated in accordance with the Michigan Child Support Formula (“MCSF”). The MCSF is based on, among other factors, the parties' incomes and the number of projected annual overnights each party spends with child(ren). The court must order support in the amount determined by the MCSF unless the court finds that application of the formula would be unjust or inappropriate.
Thus, if a party’s circumstances have changed significantly since the entry of the last court order (e.g., job loss or underemployment) s/he may be entitled to a reduction in the amount of support.
On the other hand, if the MCSF as applied to your present situation is oppressive, the court may deviate from the MCSF and grant you a reduction. You must file a motion with the friend of the court in order to secure a reduction or a payment plan respecting child support arrears.
ALIMONY & PROPERTY DIVISION
Family Law Services
We achieve success in all areas of family law, including: divorce, child custody, child support, property division, spousal support, grandparenting time, child protective proceedings, guardianship, special education, juvenile defense, appeals, amendment or expunction of CPS records, and family-based immigration difficulties, including permanent residency or green card applications, removal & deportation defense.
What follows is a list of the areas in which we excell in the practice of family law.
© 2012 by Law Offices RL Johnson PLLC
DISCLAIMER: All information contained in this website is for education purpose only and is not intended to be legal advice. Moreover, communication with this firm does not form an attorney-client relationship. That relationship only occurs upon the execution of a retainer agreement. Moreover, while the information contained in this communication may be based on laws and court rulings, it must not be relied upon as legal advice on specific facts. Law Offices of RL Johnson PLLC, its agents and affiliates cannot and will not render any legal or tax advice of any kind, unless said agent is duly licensed by the applicable state and/or federal authority to give said advice.
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