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What is Mediation?
In most divorce cases, a mediator is appointed to assist the parties in reaching a settlement prior to the scheduled trial date. The mediator is usually chosen by the attorneys or by the court. The mediator is a neutral third person, who has expertise in family law as well as alternative dispute resolution. Reaching a settlement at mediation is voluntary and usually requires compromise from both sides in order to settle the case. If a case is settled at mediation, the mediation agreement is reduced to a judgment of divorce and the case does not proceed to trial.
What is Arbitration?
Arbitration is a binding process that takes the place of a trial. The advantage of arbitration is that the parties, with the assistance of counsel, are able to choose their own person to resolve the case instead of the judge that is assigned to the action. If you place your case in arbitration, all disputed issues, which could include such issues as custody, parenting time, child support, retirement, spousal support, debt and division of property will be decided by the person that you and your spouse appoint as arbitrator. The arbitrator’s decision shall be binding.
The disadvantage of arbitration is that each party’s right to appeal the decision of the arbitrator is much more limited than a party’s right to appeal the decision of a trial judge.
What is Voluntary Consent and Contested Step Parent Adoption?
Voluntary Consent: When you wish to adopt your stepchild, both parents – your spouse (the custodial parent) and the child’s non-custodial birth parent – must agree to the step parent adoption.
Clearly, the easiest and most amicable step parent adoptions happen when the other parent voluntarily agrees to give up their legal parental rights. Some parents are willing to consent because they understand that it is in the child’s best interest. Still other natural parents may agree to terminate their rights as the child’s parent in an attempt to avoid child support. However, termination of parental rights does not release a parent from potential child support obligations.
Contested: Many parents object to step-parent adoption, because they would be relinquishing all of their parental rights. Depending upon the child custody agreements, these may include their right to visit the child, make decisions about their child’s health, and moral and educational upbringing. In these cases, you must petition the court to terminate the parental rights through court procedure. Michigan adoption laws uphold that the non-custodial parent’s rights to the child may be involuntarily terminated only if both of the following requirements are proven true:
- The parent is able to support the child, but has failed to make any provisions of regular and substantial support for the child; and
- The parent has regularly and substantially failed or neglected to see their child for a period of two years or more before the filing of the adoption petition Also, in cases where the child is 14 years or older, the child must consent to the stepparent adoption.
Step parents play a tremendous role in the life of a child. As a stepparent, you become a central figure to your wife or husband’s children. Stepparent adoption in Michigan by law recognizes the relationship you have with your child. It is a legal status that brings security to the child and into the home, by knowing that you have all of the parental rights of a birth parent. Step parent adoption allows you to continue the relationship even if something happens to your spouse.
Again, as in all family law issues involving children, it is paramount to keep the child’s best interests as the overriding priority. A birth parent should not be removed from the life of his or her child, simply because the adults no longer wish to deal with one another any longer. Michigan adoption laws and proper counsel help see to that.
Do grandparents have custody and visitation rights?
Grandparents do not, by default, have custody and visitation rights. However, grandparents can petition the court for these rights in very limited circumstances: with the consent of the parents during or after a divorce; if the child was born of wedlock, paternity has been established, and the father is paying child support; if legal custody of the child has been given to someone other than a parent; if the grandparent had custody of the child within the last year; or if the grandparent’s child (the parent of the grandchild) is deceased.
What is the legal divorce process like?
Some divorces are simple and can be handled with a minimum amount of court involvement. However, most divorces are more complex and can take many different courses. The following is a basic outline of the divorce process.
- One spouse contacts a lawyer, who prepares a complaint setting forth the reasons why for the divorce.
- The complaint is filed with the court and served on the other spouse, together with a summons that requires the spouse’s response.
- The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. The response, or answer, must express the relief that the answering spouse requests.
- The parties, through their attorneys, engage in “discovery,” during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
- The parties may attempt to reach a settlement, which can be initiated voluntarily or facilitated by the parties’ lawyers or a neutral third party, such as a mediator.
- If a settlement is reached, the agreement is submitted to the court.
- If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
- At trial, the attorneys present the evidence and arguments for both sides; the judge decides the issues and grants the divorce.
- Either or both parties can appeal the judge’s decision to a higher court.
Does Michigan grant divorces based on marital fault?
Michigan is a no-fault divorce state. A divorce will be granted regardless of the fault of either party. However, fault can come into play when dividing marital property or when one party asks for spousal support or alimony. Fault is just one of 14 factors a judge will look at when determining what is fair in the division of property and whether spousal support should be awarded.
Can I change my name at the time of divorce?
Yes. A woman’s maiden surname can be restored by court order. Usually, the restoration of a maiden name is included in your final judgment of divorce. After the judgment is filed with the court, you can proceed with changing your name with the federal government (social security office) and the state (Michigan Secretary of State).
How long does it take to get divorced in Michigan?
If there are no children involved, a divorce may be granted in 60 days. When children are involved, a divorce cannot be granted until six (6) months have passed. However, these are minimum waiting periods; depending on the circumstances, a particular divorce case could take far longer.
Are there residency requirements to file for divorce?
Yes. Michigan law requires that the person filing the divorce petition must have been a state resident for at least 180 days immediately before filing. He or she must also have been a resident of the county in which the petition is filed for at least ten days, unless there’s a risk of the other parent taking the children out of the U.S. and to another country of which the parent is a citizen or native.
What are the grounds for divorce in Michigan?
Michigan is a no-fault state. The only ground for divorce in Michigan is that 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.” The court has the power to terminate the relationship between the parties regardless of who did what to whom. Fault does play a role however, in the court’s determination of child custody, property rights and spousal support.
What if my spouse lives in another state?
No problem. Michigan’s “long-arm” statute gives effect to service of the divorce papers even when served out of state. The out of state spouse is simply given a bit more time to respond to the Summons and Complaint.
Do I have a right to a jury trial?
No. Cases are heard by judges or referees only, in specialized family law courts.
How much will my divorce cost?
Attorney fees for divorce are based upon many factors, including whether the case is going to be contested, whether the child custody is an issue, along with whether or not there is a business, and other issues that make the case more complicated. Our philosophy is to meet with a prospective client to answer questions and find out exactly what is involved because every case is different. We do not charge for the initial consultation with the understanding that while we will see you without charge, if you retain us then the time that we spent for the initial consultation is set off against the retainer. The ultimate cost of the divorce will depend on how much litigation is involved, and how complicated and drawn out the case is.
What is “Separation”?
There is no “legal separation” in Michigan. Rather, Michigan provides for a “separate maintenance”. A separate maintenance is similar in many ways to a divorce, except that is does not technically end the marriage. A separate maintenance is often used for religious reasons where divorce is not permitted. A separate maintenance allows for the division of marital assets and may grant spousal/child support; however, it does not legally terminate the marriage.
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How does a court decide which parent will get custody of a child?
When the parents cannot agree on a custody arrangement, the court will make the decision for them. When determining the child’s best interests, the court may consider may factors, including
- The child’s age
- The child’s gender
- The child’s physical and mental health
- The parents’ physical and mental health
- The parents’ lifestyles
- Any history of abuse
- The emotional bonds between the parent and the child
- The parent’s ability to give the child guidance
- The parent’s ability to provide the basic necessities, such as food, shelter, clothing and medical care
- The child’s routines, including home, school, community and religious
- The willingness of the parent to encourage a healthy, ongoing relationship between the child and the other parent
- If the child is above a certain age, the child’s preference
- Who has been the child’s primary caretaker?
What is joint custody? What is sole custody?
In Michigan, there are two types of custody: legal and physical.
- Legal custody is the ability to make important life decisions for your child, such as health care, education, child care and general welfare. Joint legal custody gives both parents the right to make these decisions and they should consult with one another before making non-routine decisions. Sole legal custody gives one parent all decision-making responsibilities.
- Physical custody refers to the actual physical residence of the child. Joint physical custody allows the child to retain a residence with both parents, usually with one parent being the primary custodian and the other parent having parenting time on a set schedule. Sole physical custody means that the child resides with only one parent. The other parent may or may not have parenting time or visitation rights.
Can a parent refuse to allow visitation if child support is not paid?
No. Parenting Time and child support are separate entities. If you have not received a child support payment you should contact the Michigan Friend of the Court for the county where your child support order was entered. The Friend of the Court has the ability to garnish wages to help collect child support.
If parenting time was established under a court order, you could be held in contempt for not following the order.
What if we cannot agree on a custody arrangement?
If the parents cannot agree on a custody arrangement the court will hold a trial. At the trial, each party can present evidence regarding why their proposed custody arrangement is in the best interests of the child. The court can adopt one party’s proposed custody arrangement or order any custody arrangement it feels is in the child’s best interests.
Once a court issues a child support order, can the amount of support that is paid be changed?
The amount of child support may be modified under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable.
When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, usually through counsel, the reasons supporting and change in previously issued orders. Also, under certain circumstances, an increase in the cost of living can warrant an upward modification of child support. Generally, periodic increases can be provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living.
How is child support collected if the person responsible for paying it moves to another state?
Under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), an order for support issued by the family court in one state will be enforced by the family court in another state to which the paying parent moves if certain conditions are met. Under RURESA, the custodial parent has two options for how to proceed to collect support.
Under the first option, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. The family court will move to enforce the order and make the non-custodial parent pay. The payer parent can, however, go to court in his or her new home state and argue that the child support amount should be modified, and if he or she is successful, the child’s home-state court may be stuck with the reduced amount.
Alternatively, the custodial parent can go to the family court in his or her home state to commence an action to enforce the support award issued by that court. The enforcement agency that serves that court will notify the payer’s new home state so that enforcement actions, such as wage withholding, can be implemented there. Under this method, the payer cannot get the award modified in his or her new home state. The new state’s court can, however, determine that the amount of child support ordered is too high and require that only a portion of it be paid, but the original state does not have to accept the reduced amount. The payer remains liable for the full amount as originally ordered, and if he or she fails to pay it, the original state may issue an arrest warrant, and the delinquency can show up on the payer’s credit report.
How long does child support last?
Child support generally is paid until the child turns age 18. If a child has not yet finished high school, support will be ordered up to age 19 1/2, provided that the child is enrolled in high school on a full time basis, and has a reasonable expectation of graduating. It stops at graduation past age 18.
How is child support determined?
Child support is determined primarily on the income of the parents, the number of children dependent on each party, and the amount of time the children spend with each parent. Child support is determined by the Michigan Child Support Formula, judges must follow the formula unless it is an “unjust or inappropriate” result. The court may deviate from the formula, or the parties may agree to deviate from the formula, but only if the child support order clearly sets forth in writing why following the formula would be unjust or inappropriate.
The Child Support Formula can be found at: http://www.courts.michigan.gov/scao/services/focb/mcsf.htm
A Child Support Worksheet is used to analyze income and other factors and determine a proper child support recommendation. These other factors include:
- Income of the parents
- Number of children
- Daycare costs
- Health/dental insurance costs
- Financial obligations that one or both parents are responsible for
Payments are normally made through the Michigan friend of the Court Bureau or the State Disbursement Unit (MISDU). More information is available at https://www.misdu.com/secure/. Each parent is responsible to notify the Michigan Friend of the Court Bureau of any changes in their employment or changes in insurance benefits.
Child support may cover health care, dental care, childcare, and education of the child. The judgment of Divorce must include a provision that requires one or both of the parents to provide health care coverage, if such coverage is available at a reasonable cost as a benefit of employment.
Is it necessary to establish paternity for every child?
No. If a child is conceived or born when the mother is legally married, her husband is the legal father of the child—even if he is not the biological father—unless a court decides that it is not his child when the parties divorce.
What if a child is born after a divorce is final?
If the child is born less than 10 months after the divorce was final, it may be necessary to reopen the divorce case.
Unless the mother has remarried in that time, the Michigan Department of Community Health will not accept an Affidavit of Parentage or issue a birth certificate with the name of any man except the husband until there is a court order stating that the ex-husband is not the father.
If the divorced husband is the biological father, the Divorce Judgment should be amended to include the child as a child of the marriage in any provisions for custody, support or parenting time.
What is a putative father?
A man believed to be the biological father by the mother and others but who has not been determined to be the legal father is called a “putative” father.