If your getting a divorce, there are many important issues facing you as you start a new phase of your life. Some issues that may need to be resolved in divorce include division of real estate, division of personal property, division of retirement assets, spousal support, pre-martial contributions, and attorney fees. If you have children the custody of the children is also an issue. That subject can be found on our pages regarding child custody.
Is your case a divorce with children.
Is this really a divorce without children? Sometimes a woman who is already pregnant will marry before the birth of her child. The parties know that the child is not the husband’s child. If a child is born at any time during the marriage, even if the child is not the child of the marriage, the child is presumed to be born of the marriage. The issue of paternity needs to be dealt with in the divorce and the case is really a divorce with children.
The presumption that a married father is the father of all children born to the marriage also applies even when both parties know and agree that the mother got pregnant during the marriage from another man. This would still be a divorce with children. The paternity of the children must be dealt with during the divorce or the parties may lose their right to deal with it later.
If your children are over the age of 18, then your case would also be a divorce without children. The court will only consider the case a divorce with children if the parties have minor children.
Division of Real Estate
Frequently families own a home and their investment in this item is the most valuable item many families own. We evaluate how to establish the value, pre-marital contributions to the real estate, and family history of the real estate. There may be other factors to consider in each individual case to decide what should happen to the real estate.
Alimony in Michigan and Spousal Support
Alimony is a payment from one spouse to the other used to support them. If a court determines that a spouse is substantially dependent on the income of the other spouse for the regular necessities of life, the court can award spousal support or alimony.
Alimony in Michigan Explained.
Theres four basic questions we ask in when evaluating spousal support claims. 1. How much? 2. For how long? 3. Can it be changed later? 4. How is it going to be paid?
The law on alimony is found in the Michigan Compiled Laws at MCL 552.23. This law says that “. . .if the estate and effects awarded to either party shall be insufficient for the suitable support and maintenance of either party, the court may further award to either party . . . alimony out of the estate real and personal, to be paid to either party in gross or otherwise as it shall deem just and reasonable, having regard to the ability of either party and the character and situation of the parties, and all the other circumstances of the case.”
The amount of spousal support or alimony awarded will depend on the difference between the income of the parties and the length of the marriage. In court, the difference in income is called “disparity.” It essentially means that one income is much larger than the other person’s income. The classic example of this is the housewife that hasn’t worked for 30 years. She or her husband files for divorce and because she has no income, we say there is a large disparity in income.
Alimony can be awarded for period of time, which in legal terms people call a “term of years.” So, for example, alimony can be awarded for 5 years. Alimony can also be awarded until a certain event occurs. The events most judges would choose would be death or remarriage. But some parties and judges choose other events, like “until the defendant or plaintiff graduates from college.”
Spousal Support is always subject to change if a party shows a change in circumstances unless the parties agree to make it non-modifiable or the judge orders that it is non-modifiable.
Factors used to determine if alimony is appropriate
The court will take evidence on eleven different “factors” or issues when deciding if alimony should be awarded. The eleven factors are:
- The past relations and conduct of the parties.
- The length of the marriage.
- The ability of the parties to work.
- The source of and amount of property awarded to the parties.
- The age of the parties.
- The ability of the parties to pay alimony.
- The present situation of the parties.
- The needs of the parties.
- The health of the parties.
- The prior standard of living of the parties and whether either is responsible for the support of others.
- General principles of equity (fairness).
Parish v. Parish 138 Mich App 546 (1984)
How Does Fault and Alimony Relate to Each Other
The no-fault rule in Michigan applies only to the issue of the granting of a divorce. It used to be that to be granted a divorce a party had to show fault. However, in regards to property division, fault is a factor. Also, in regards to alimony and spousal support, fault is a factor.
Alimony in Michigan guidelines
There is not an official guideline for alimony in the state of Michigan. The Michigan Court of Appeals stated that a court should not use a rigid and arbitrary formula and instead should use the factors above to account for the unique circumstances of the parties.
Modifiable vs. Non-Modifiable
A judge can only order modifiable alimony. However, the parties can agree on a non-modifiable award. Staple v. Staple.
Most alimony or spousal support payments are tax deductible to the person paying and tax deductible to the person receiving support. This is governed by Internal Revenue Codes section 71 and section 215.
If structured correctly, alimony payments are deductible to the person paying the alimony and included in the income of the person receiving alimony.
Under IRC 215, payments made for alimony are allowed as a deduction. However, in order for payments to be tax deductible, the eight requirements of I.R.C. sec, 71 must be met. Just calling the payment alimony does not necessarily do it. See the following requirements taken from IRS.gov explaining what makes alimony tax deductible:
- You and your spouse or former spouse do not file a joint return with each other
- You pay in cash (including checks or money orders)
- The payment is received by (or on behalf of) your spouse or former spouse
- The divorce or separate maintenance decree or written separation agreement does not say the payment is not alimony
- If legally separated under a decree of divorce or separate maintenance, you and your former spouse are not members of the same household when you make the payment
- You have no liability to make the payment (in cash or property) after the death of your spouse or former spouse, and
- Your payment is not treated as child support or a property settlement
Retirement division (401k, Pension, and other retirement assets)
Retirement assets earned during the marriage are generally a part of the marital estate. The court will usually divide the retirement between the parties, even if one party or the other party earned it.
Pre-marital property or contributions and separate property
There are circumstances where a court may consider property to be separate property. Where a party owned property prior to the marriage and has kept that property separate, the court may consider the property separate and award it to the party that brought it to the marriage.
Personal property division
Many times parties only have personal property and debt to divide in a divorce without children. Still how that property and debt is divided can have important consequences to the parties.
For example, if the parties bought an ATV together and also have a debt with both names on it. Party A says they will take the debt on it and the assets, even though both names are on the debt. Party B agrees. Party A defaults on the loan destroying Party B’s credit. Then the credit company sues both parties and Party A files for bankruptcy. Unless the ATV loan is secured, Party A keeps the ATV if it is exempt under the bankruptcy code and if it isn’t it goes to the bankruptcy trustee. Party B now has to pay the loan in full and does not have the property.
The point is that how you divide even personal property and debt can effect you deeply in the future. Consequently, it is important to have an attorney look at your situation and give you advice about how to divide your assets and debts.
Insurance issues Frequently clients ask us if their spouse can cancel insurance during a divorce proceeding. This is a threat that sometimes a party to a divorce action will make. We can ask the court to require the parties to maintain things the way they are while the divorce is proceeding. Sometimes an agreement can include provisions for one party to pay insurance for the other party. There are also COBRA provisions that allow a spouse to maintain health insurance.
Attorney fees can be awarded in divorce case when one party cannot bear the expense and the other party is able to pay. This standard is largely up to the discretion of the judge on the case. The Michigan Court Rules state that “a party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding. (2) A party who requests attorney fees and expenses must allege facts sufficient to show that (a) the party is unable to bear the expense of the action, and that the other party is able to pay.” MCR 3.206 (C)(1). This provision can be applied in most domestic proceedings, including paternity actions.
Does it matter if I or my spouse am at fault for the divorce?
Michigan is a no-fault divorce state. A court can grant a divorce for virtually ANY reason. However, division of property can take into account if a party is at fault. There are many other factors when dividing property in a divorce case that should be reviewed by an attorney.
What is a divorce going to cost me? Can I afford it?
The cost of a divorce in Michigan can vary significantly depending on what type of property you have to divide, if you and your lawyer decide that you need to take your position to court defend your property.
Do I really need to hire an attorney?
Yes. Divorce laws and courtroom procedures are complicated. Knowing your rights and getting it done right the first time is priceless. We have had many many clients come to us that did not have an attorney and ended up in huge financial trouble because their property was not properly divided and their rights were not protected.
Does Michigan grant divorces based on marital fault?
No. Michigan is a no-fault divorce state. A judge will grant a divorce no matter whose fault it is. However, fault can be considered by the judge when dividing marital property or when one party asks for spousal support or alimony. However, fault is just one of 14 factors a judge can look at when determining how to divide property and whether spousal support should be awarded.
Can I get maintenance or spousal support or will I have to provide maintenance or spousal support to my spouse?
Maintenance, called spousal support or alimony in Michigan, is something that is largely left to the judge’s discretion. There is not a specific formula that a judge is required to use when making this decision. Click here for more information on the factors the court uses to determine spousal support.
Can I change my name at the time of divorce? Do I need my husband’s permission to keep my married name?
No. You do not need your husband’s permission to keep your married name. Frequently a male client asks me if he can force his wife to change her name back to her maiden name. The answer is no. If a woman wants to have her maiden name restored, she can do that through court order at the time of the divorce. After the judgment is filed with the court, she can then change her name with the social security office and the state (Michigan Secretary of State).
Why would a woman want to keep her married name? The most frequent reason is that she wants to carry the same name as her children. However, it truly doesn’t matter as the law says she can keep her name or restore her prior name.
Can I get an annulment in Michigan?
Yes, but only under limited circumstances. An annulment is a declaration that a marriage never took place. In Michigan, an annulment can be granted for marriages that are legally void, such as in the case of bigamy, a marriage between relatives within the 5th degree, or a marriage to someone that is unable to contract or even maybe lied about their identity.
When can I file for divorce in Michigan?
To file for divorce in Michigan, it is essential that you reside in Michigan for 180 days. The word “residence” has a special meaning. You also must “reside” in the county of filing for at least 10 days. If you do not meet these residence requirements, you should not file for divorce. A divorce can be set aside if you do not meet these residency requirements.
When is my case going to be over?
This depends on your case. At a minimum a divorce usually take 90 days if you do not have children. You usually have 180 days minimum if you have children. If you have property division issues and or custody issues that need to be decided by a judge, your case could take longer.
Do I have to go to court?
One of the parties will have to go to court at least one time. In order to enter a Judgment of Divorce, a judge must take evidence on the record by asking specific questions to one of the parties. These are simple questions and if the divorce is settled and an attorney is involved, this hearing can be fairly simple.
If your divorce case is highly contested, you can expect to go to court much more frequently. Anytime there is a court date scheduled for your case, you should attend.
If attempts to serve my spouse do not work, what is my next step?
We can ask the judge to use an alternate form of service by filing a motion if the first attempts do not work.
At what point during the process can a spouse remarry or start dating?
You cannot get remarried until your judgement of divorce is entered and signed by the judge and filed with the clerk. If you do, the marriage is void and subject to annulment.
What if my spouse does not want the divorce?
Michigan is a no fault divorce state, so only one side needs to want the divorce and make the allegation that the marriage as broken down to the extent that the objects of matrimony have been destroyed. So essentially it doesn’t matter if the other person wants a divorce.
Can I get a divorce before my property is divided and before custody is decided for my children?
The simple answer is no. All property division issues and custody issues must usually be resolved prior to a court granting a judgment of divorce.
After I file for divorce, do I have to continue to live in Michigan?
No. (Please disregard this if you have children). This is our page on divorce WITHOUT children, please keep in that in mind. There is no requirement that you reside in the state after filing, but you must attend any court appearances unless you get permission from the judge to not attend.
What forms do I need to file for a divorce in Michigan?
A Summons and Complaint must be filed to begin a divorce. It also must be filed with the appropriate filing fee. In addition, there are allegations that must be contained in every complaint for divorce and if those allegations are not made, the court may not be able to grant you a judgment.
How and where is a divorce complaint filed?
A complaint for divorce is filed at the County Clerk’s office in the State of Michigan. So for Charlevoix County (Charlevoix, Boyne City, East Jordan, some parts of Elmira and Walloon Lake) that would be at the Charlevoix County Clerk. For Emmet County (Petoskey, Alanson, Pellston and Conway), that would be the Emmet County Court Clerk.
How do I serve the divorce complaint on my spouse?
The complaint must be served by someone who is an adult and not a party to your case. In other words, you cannot personally serve the complaint. However, you can send it to your spouse by certified mail with return receipt requested. A proof of service must be filed with the clerk.
What typically happens if I go to court to obtain my divorce myself?
It is our recommendation that you have an attorney review your case. At the Doak Law Firm we will meet with you for a no risk half hour to help you decide if you need an attorney and what the probable cost of that would be. If after covering the case with an attorney you decide to proceed without an attorney, that is certainly your decision, although it is not generally recommended. If you decide to proceed without an attorney, your divorce will progress the same way as if you had an attorney, you will just be representing yourself. You are supposed to be held to the same standards as an attorney if you represent yourself, and many judges do that.
Can a couple become legally married by living together as man and wife under the state’s laws (common law marriage)?
No. Michigan does not recognize new common law marriages in Michigan. However, Michigan does recognize common law marriages entered into prior to January 1, 1957 and also common law marriages that were recognized under another state’s laws.