Because Michigan is a “No-Fault Divorce” State, you or your spouse can get a divorce simply by stating that there has been a breakdown in the marriage and it is unlikely the two of you can get back together.
The assistance of a good attorney is invaluable in resolving the real issues in a divorce case: child custody, support, parenting time, property division and spousal support.
Child Custody, Support and Parenting Time
If you have children, you and your spouse may have already decided with whom the children will live. Normally, the Judge will accept this decision. However, if there is a dispute about physical custody, a trial will be necessary. In a trial, the Judge will hear all relevant evidence and the argument of the attorneys, and decide the issue. The law does not favor the mother or the father. Instead, the Court decides what is in the best interest of the children. The Court considers many specific factors in making this decision, and must consider the evidence presented on each factor. Presentation by your attorney of all the important evidence is essential to a favorable custody determination
Once the issue of custody is decided, either by the Judge or the parties themselves, the amount of child support needs to be calculated and set. In Michigan, a formula is used to help determine the proper amount. There are several different factors that are considered under this formula, and there may be several reasons the formula amount is not appropriate in your case. It is important that all of the relevant information is presented when the child support amount is calculated.
Physical custody and child support are not the only issues regarding the children. The law recognizes the importance of both parents in raising the children. The “non-custodial” parent is generally entitled to reasonable, liberal parenting time. The law also provides for “joint legal custody”, allowing the non-custodial parent to be involved in the most important decisions about the children. In short, the law can be used to maintain a strong parent-child relationship despite the divorce.
In cases involving children, the Court receives the assistance of an agency called the “Friend of the Court”. The Friend of the Court is a huge bureaucracy, handling thousands and thousands of files. Thorough knowledge of this bureaucracy is required to make sure that the Friend of the Court works properly for all involved. The Friend of the Court will be involved in your life until your children are grown. When circumstances change, child support, custody and parenting time can be changed even after the divorce is granted. The Friend of the Court will be involved each step of the way.
Under the law, the property of the parties to the divorce is divided “fairly”. The standard is obviously vague and, although there are rules to help decide what is “fair”, strong advocacy by your attorney is the best way to ensure that the property settlement is fair to you. The term “property” includes a lot of different things. Real estate, and personal property like cars and household goods, are, of course, included. But the Court will also consider pensions, retirement savings accounts, health and life insurance, businesses, inheritances, and even professional degrees. Division of property does not mean that the property will be sold and the money split in two. A good property division is one where the parties do not lose money to others. A sale of real estate, for example, will take money from the parties and give it to a real estate agent. Often, carelessness in a property settlement can result in taxes which could have been avoided. The more that is lost to these outsiders, the less there is to divide and the smaller each spouse’s share will be. Thorough knowledge of the legal consequences of property division can help minimize the pain of splitting up property.
Unlike child support and custody, the property division cannot be modified once the judgment is signed. It is important to get it right the first time because there will not be another chance. Proper steps must be taken by your attorney to make sure that all assets and liabilities are discovered and addressed. By identifying all of the property, and using innovative property settlement techniques to eliminate the unnecessary loss of assets to outsiders, a truly “fair” property division can be achieved.
Alimony, or financial support of one ex-spouse by the other, is another issue in the divorce case. The Court looks at the relative needs of the parties, their abilities to pay alimony, the length of the marriage and several other factors in deciding whether alimony is appropriate and what the proper amount should be. Alimony is not awarded in all cases. If alimony is awarded, it can for a limited, short term or permanent. As with the division of property, there are significant tax consequences to alimony. In each case, careful presentation of these factors ensures that the resolution of the alimony issue is fair.
The divorce starts with the filing of a Summons and Complaint. In cases involving children, a temporary order regarding child custody and support is usually obtained at that time. If that order is unfair, objections need to be filed quickly. Late or an improper reply to these documents can result in the loss of substantial rights.
In many cases, prompt actions must be taken early in the divorce proceeding. Temporary custody must be decided when disputed. Parenting time rights may need to be protected. The right child support amount must be set on a temporary basis. Injunctions may be necessary to protect against the loss of property or an abusive spouse. Temporary alimony may or may not be appropriate.
Once any problems with temporary orders are addressed, good representation during a divorce case is aimed at fairly resolving all differences, if possible. Shared custody or ample parenting time may resolve a custody dispute, for example. All assets and liabilities should be identified and settlement options explored. If an agreement acceptable to both parties is reached, it must be reduced to writing in a way which protects your interests. If settlement does not occur, good trial preparation is the key to success. The collection of all information necessary to achieve an appropriate decision from the Judge is also necessary to good representation at trial.The divorce is finalized through the Divorce Judgment. Other documents, such as deeds or orders regarding pensions, may also be necessary. A mis-step at this juncture can affect your rights later. A Judgment must be drafted properly to protect all that has been achieved.
Additional legal action may need to be taken even after the divorce is finalized. Often, certain legal documents need to be prepared after Judgment to comply with the provisions of the Judgment. And, since child custody, support, parenting time and certain types of alimony can be changed, subsequent legal action may be necessary.
Most people need a good attorney to be part of the divorce process. The issues discussed may seem simple enough, but there are many pitfalls for the unwary. Retaining a good attorney is your best opportunity to ensure that the system works for you.
As with any other profession, a good attorney is an experienced attorney. The basics of divorce law are taught in law school, but the application of the basic legal principles in a particular case, however, is best accomplished by an attorney who has experience. Negotiation skills, most important to a good resolution of a divorce case, are acquired only through the actual handling of cases. Since most people do not have the experience to handle these issues, a good attorney is essential.
A good attorney works for you. In many cases, the parties may agree on many important issues. If so, a good attorney will discuss with the client the fairness of that basic agreement, and draft a Divorce Judgment that accomplishes the goals of the parties. If there are disputes, a good attorney can help resolve them fairly through legal knowledge, experience and negotiating skills. If the disputes cannot be resolved, a good attorney must have the trial skills necessary to assist in getting the best result.
Attorney Steven T. Budaj has over forty years of experience handling divorce cases. Attorney Steven T. Budaj is well respected in the legal community and well known to the Friend of the Court and the Judges who may decide your case.
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