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Separation, Divorce, Separate Maintenance

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There are many reasons for separating. Some parties want to separate, perhaps to test the waters to determine if living apart is better than living together. Some separate with the intent to work on the marriage during the separation. Some separate so that they can test out an already existing illicit relationship to see how that works out before deciding to divorce. Some parties think that the spouse would react too negatively to the request for a divorce, so they ease into it by suggesting a “trial separation.” Separation may be suggested by one party after that party has decided to get divorced, as a tool to get the other side out of the house or to establish a preferable custody and parenting time situation in the hopes that the Court will later adopt it in a more permanent form. Some also use separation as time to hide assets.

Some are devious and first consult with an attorney. She* then may bring up the topic of separation while holding out the hope of reconciliation. She leads the other party to think that if he is reasonable in dividing assets and otherwise is generous in negotiating settlement terms that he is reducing the chance for divorce. When the other party finally figures out that they have been taken advantage of, it might be too late to effectively turn back the clock. He feels doubly betrayed and perhaps a little naïve or stupid.

If you have evil intentions, this law firm should not be your choice.

An alternative to filing a complaint for divorce is to file a Complaint for Separate Maintenance (JOSM). An order granting a JOSM economically divorces the parties, but technically preserves the marriage. A JOSM divides marital assets, deals with or rules out spousal support, and where applicable, deals with issues of child support, custody, and parenting time.

Because divorce is now societally acceptable, one main reason for seeking a Judgment of Separate Maintenance (JOSM) is gone. In Western Michigan, Separate Maintenance was sometimes known as a Christian Reformed Divorce. In Michigan, if you have a JOSM rather than a Judgment of Divorce, you cannot remarry. If a party with a JOSM wanted to remarry, he* must first file a Complaint for Divorce; with the hopes of retaining the terms of the JOSM in the ultimate Judgment of Divorce.

If one party files for an action for Separate Maintenance, the other party has an absolute right to seek entry of a Judgment of Divorce.

If a party obtains a Judgment of Separate Maintenance and then later seeks entry of a Judgment of Divorce containing the same terms, the other side may allege that adopting the terms of the earlier Judgment are unfair due to changed circumstances; perhaps including post-judgment intermingling of assets, etc.

Some parties wish to maintain work related health care coverage for both spouses, so they file an Action for Separate Maintenance as opposed to a Divorce. But, many employers now consider a JOSM as sufficient cause to terminate coverage for the non-employee spouse.

Immigration status may be another reason for filing a Complaint for Separate Maintenance rather than a Complaint for Divorce.

Please contact Pater Law, PC if we can be of assistance.

* In this article, she is used interchangeably with he. No inference should be drawn by use of either he vs. she.

Choosing a family law attorney

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Pater Law
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Knowing who to choose as your family law attorney can be difficult. Michigan has an abundance of attorneys and some need the business and advertise their specialized knowledge in divorce. One local attorney “specializes” in representation and defense of all areas of family law, plus criminal defense, civil litigation including personal injury, wrongful death, civil rights, police misconduct, Bankruptcy, estate planning, business law and civil, criminal, tax and bankruptcy appeals. There isn’t much law that he doesn’t claim to specialize in. What criteria should you use to choose a lawyer?

  1. Meet with the attorney and if you feel uncomfortable, choose another attorney. There are many who want your business. Don’t settle for someone when there are lots of choices.
  2. Does the attorney have a sane and sober demeanor? You need someone who will encourage good behavior and discourage bad behavior. Divorce and custody disputes can be emotional without an attorney adding fuel to your emotions. Adding fuel to the fire may initially make you feel good, but the final result may be expensive, both emotionally and monetarily. Don’t hire an attorney who says: “Let’s you and him/her fight and I will bill you monthly.”
  3. Look for someone who has a combination of being experienced, reasonable and aggressive. Raymond Pater has over 30 years of experience.
  4. Is family law one of the firm’s 100 specialties? If so, you may decide to look elsewhere. Raymond Pater focuses his practice on family law and collections.
  5. Does the attorney have a high peer review rating with a nationally known rating agency? Raymond Pater has earned the Martindale Hubbell rating of “BV© Distinguished” with Very High Ratings in both Legal Ability and Ethical Standards.

Contact Raymond Pater at 616-396-8883 or at ray@paterlaw.net if you need legal representation in a divorce, custody, parenting time, child support or spousal support dispute.

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How Much Will My Divorce Cost?

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Pater Law
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One of the first questions clients often ask is, “How much will this divorce cost?” Several factors can influence legal fees that are beyond this attorney’s control.

a. Complexity. A case involving issues such as the value of a business or child custody may add complexity and attorney fees. (A parent has to look out for what is best for the child(ren). In rare cases, a parent is so eager to avoid conflict and increased legal fees, that he or she agrees to something that harms the children.)

b. Willingness to settle. Sometimes a reasonable settlement should be relatively easy to reach, but one or both parties make unreasonable demands. There should be a realistic cost-benefit analysis of when to fight and when to settle.

c. Conflict and emotions. Divorce often involves strong emotions. Animosity or the desire for revenge can increase attorney fees. Some waste good money fighting over minor issues or by aggravating a spouse so that a reasonable resolution becomes difficult or impossible.

d. Attorneys. Attorneys have the responsibility to seek to reduce unnecessary conflict that may result in harm to the client and the cause of justice. Attorneys do a disservice when they adopt an approach of “let’s you and him fight” (and I will bill you monthly). Look for an experienced divorce attorney with a realistic view of what you are likely to achieve, who will work to obtain a resolution that benefits you without unnecessary delay, conflict, and attorney fees. You want to walk out without getting taken to the cleaners by your spouse or your attorney.

WHAT CAN YOU DO TO REDUCE LEGAL FEES?

1. Fight over the important things. Decide what is important and spend your time and energy obtaining and organizing information that relates to the key issues in your case. Try not to get sidetracked by your spouse’s emotional outbursts. Stay focused on the relevant and the material.

2. Don’t waste attorney fees in dealing with conflict. It is expensive to use lawyers to fight battles that should be avoided. When you get upset you can call your attorney to schedule another deposition or you can exercise, pray, work hard, reflect, seek counseling or go for a walk to help reduce conflict and the costs related with obsessing about your divorce.

3. It has often been said that if an attorney represents himself, the attorney has a fool for a client. That means that even an experienced attorney needs the advice from a third party who can analyze the case without undue emotional involvement. That also means that if you want to obtain the full benefit of having an attorney, you should obtain a good one whose advice you will not needlessly second guess and who will not let emotions cost you money.

4. Recognize that divorce can be painful and try not to blame everything on your spouse. Hiring the most expensive and most aggressive junk yard dog for an attorney is a costly and ultimately unrewarding way to deal with the pain of divorce.

Look for an attorney with whom you can communicate openly and who has a mature and experienced approach that can help to reduce unnecessary conflict and costs during a difficult time in your life.

Fault in a Michigan Divorce

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Pater Law
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Divorce Lawyer

Michigan is a no fault divorce state. But, fault may be a factor that the Court can consider when dividing assets or when evaluating the award of spousal support.

Fault need not be raised to obtain a divorce. A party filing for divorce in Michigan need only allege “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.” In other words, one does not have to prove fault to obtain a divorce; the other party need not be an alcoholic, thieving, embezzling and abusive creep. The only proof required in terms of meeting the grounds for divorce is that one of the parties believes that the marriage has broken down and neither of the parties need to be proven a “bad” person.

Fault may be a factor when dividing property. A Court in Michigan may consider various factors, including fault. Those factors include: (1) the length of the marriage, (2) the needs of the parties, (3) the needs of the children, (4) the earning power of the parties, (5) the source of the property, (6) where the contributions toward property acquisitions came from, and (7) the cause of the divorce, including fault in the breakdown of the marriage (although fault is a factor, it must not be used punitively). The Court may also consider any other factor deemed relevant, although it is error to consider only one factor when allocating property in a divorce.

Fault may also be as issue when granting spousal support. Michigan Courts use the following factors when deciding the amount or length of spousal support: (1) the past relations and conduct of the parties, (2) the length of the marriage, (3) the abilities of the parties to work, (4) the source and amount of property awarded to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony; this can mean not only actual earnings, but the ability to earn income, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties’ health, (10) the prior standard of living of the parties and whether either is responsible for the support of others, (11) contributions of the parties to the joint estate, (12) a party’s fault in causing the divorce, and as to fault, the relative value to be given fault and the extent to which particular actions are regarded as fault contributing to the breakdown of a marriage are issues calling for a subjective response left to the trial court’s discretion subject to the requirement that the distribution not be inequitable. (13) the effect of cohabitation on a party’s financial status, and (14) general principles of equity.

Sometimes the analysis is not extremely difficult. If one spouse raised the children and the other increased his or her earning potential through education or experience, then a Court will consider that the main purpose of awarding spousal support is to balance the incomes and needs of the parties without impoverishing either party. But, even then the Court must consider all the factors, and not just need.

Because of the many factors that have to be evaluated in dividing property or evaluating a spousal support claim, don’t trust your divorce to an attorney who handles divorce as a sideline. Retain an attorney who spends a considerable part of his or her practice dealing with divorce. Experience matters.

Common Fallacies (maybe lies) about Michigan Divorces

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1. The property is all in my name so she can’t get it. FALSE.
The name in which property is held (title) does not mean much in the context of divorce. All marital assets (however titled) get divided in a Michigan divorce.

2. Michigan is a no-fault divorce state, so the fact that (s)he cheated and thereby caused the breakdown of the marriage relationship, means nothing. FALSE.
In Michigan one does not have to allege or prove fault in order to obtain a divorce. But, fault that caused the breakdown of the marriage relationship is something that the Court can consider when equitably dividing the property or when considering spousal support (alimony). If (s) he was abusive and that caused the breakdown of the marriage relationship, the Court may decide that a 55-45 split is more equitable then a 50-50 split.

3. She was a stay at home mom and I earned most of the income during the marriage, so I get most of the property. FALSE.
If the two of you decided that one of you would be a stay at home parent, then the work in the home supporting the children, counts as much as the work outside of the home supporting the children.

4. We were only married for ten years, so there can’t be any alimony (spousal support). FALSE.
Some counties used to have a general rule that there was no spousal support (alimony) unless the parties were married for perhaps 13 – 17 years. Those days are over. Now, given the right facts, spousal support can be ordered even in marriages of much shorter duration.

5. She put me through college and I got a graduate degree, but that’s simply history. FALSE.
Michigan divorce courts may decide to treat the advanced degree as property, subject to division, or award the working spouse restitution for any moneys given to the student spouse to earn the degree or more commonly may estimate what the person holding the degree is likely to make in that particular job market and subtract from that what he or she would probably have earned without the degree and then equitably divide that sum.

“Whether or not an advanced degree can physically or metaphysically be defined as `property’ is beside the point[;] [c]ourts must instead focus on the most equitable solution to dissolving the marriage and dividing among the respective parties what they have.” Postema vs. Postema, 189 Mich. App. 89 (1991), stating that most Michigan Courts “have agreed that fairness dictates that a spouse who did not earn an advanced degree be compensated whenever the advanced degree is the end product of a concerted family effort involving mutual sacrifice and effort by both spouses.”

But even with advanced degrees, living apart may be more expensive then living together. As one court stated: “One of the tragedies of this divorce, as in so many others, is that what used to be financially adequate is no longer enough. As the trial court aptly stated: “The tablecloths * * * will not cover both tables.” Woodworth vs. Woodworth, 126 Mich. App. 258 (1983).

6. She has always been a stay at home mom, but once I file she will have to get a job. FALSE.
If the stay at home mom has been out of the job market for a considerable time, the Court may very well order Spousal Support to more equally dividing income. If she has been out of the job market for a number of years, Spousal Support may also include a provision to first allow for education so that the stay at home mom gets needed updated skills and job experience.

7. It is essential to be the first to file for divorce. FALSE.
It usually doesn’t make much difference, if any. Establishing custody before a divorce filing may be important. If (s)he has the kids 24/7 for weeks on end and the other party never complained and never saw the children, a strong precedent has been established as to how custody ought to be set in the future. Being the first to file thereafter, normally means nothing.

8. I smoked pot twice per day, but that doesn’t mean anything. FALSE.
Courts will sometimes consider the criminal behavior of one party when dividing property. It is not a big jump to jumping from crime to ascribing fault that the Court can consider when deciding how to divide the marital property.

9. I inherited $25,000.00 from my grandmother five years ago, but we spent it. She should have to pay that back. FALSE.
If the inheritance was jointly used or commingled with other assets, the Court will consider it a gift to both of you and it will not have to be divided.

10. I found a cheap divorce attorney and I figure I can save a few bucks.
GOOD LUCK.
If you save $500 in attorneys fees but lose $2,000 in assets, you drove a bad bargain. Find an attorney who will vigorously represent you without losing sight of your ultimate goal – not losing your shirt to your spouse or to your attorney.

Bedside Manner; True confessions

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Pater Law
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Divorce Attorney

When I first practiced law, it was as if I had no clients. Law school had equipped me with the technical aspects of being a lawyer - to deal with legal issues and attempt to resolve them - and I fervently employed these skills to each case I was given. However, I gave little regard to the very real people whose cases I was taking on. Like a doctor who, with good intentions, becomes obsessed with treating a tumor and forgets about the patient fighting cancer, I had become obsessed with the legal issues and neglected to work on my bedside manner.

This cold and analytic beginning as a lawyer is not something I am proud of. Too slowly and too sporadically, I began to recognize the special place that attorneys occupy. A person comes and seeks legal advice. But that person may have unique and unspoken concerns and worries that also need to be unearthed, considered and addressed.

Recently a client left the following review: “Ray, let me take this opportunity to express my appreciation for your professional advice and personal support to me during this ordeal. I recall meeting with you a few years back to prepare our wills, you again displayed the people side of building trust first and then moving into the legal arena. As a Change Management/Leadership Consultant having worked with companies both stateside and abroad, I realized that success is due to building relationships through trust first. That is, the ability to listen, understand and provide direction….you are the best. Thanks again, Dale.”

I would never have received such a review ten years ago. I am glad that I received it, but wish I had deserved it earlier. If you retain me as your attorney, I hope to earn your trust and this same level of appreciation.

Joint Legal Custody

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Pater Law
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Michigan statutes do not define joint legal custody. The Courts will grant joint legal custody if the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child. The important decisions affecting the welfare of the child usually refer to those decisions related to medical, educational and religious upbringing. Lombardo v. Lombardo, 202 Mich App 155 (1993). Even if there is joint legal custody, the parent has the right to decide all routine matters concerning the child when that child is residing with the parent. MCL 722.26a.

If that parents cannot agree regarding an important medical, educational or religious issue, a party may not act unilaterally but must file a Motion to seek Court approval. The Court must consider the Best Interest of the Child Factors relevant to the particular dispute when making rulings related to joint legal custody.

For a good idea as to how such issues are dealt with, consider:

“When resolving important decisions that affect the welfare of the child, the court must first consider whether the proposed change would modify the established custodial environment. The established custodial environment is the environment in which “over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.” MCL 722.27(1)(c). While an important decision affecting the welfare of the child may well require adjustments in the parenting time schedules, this does not necessarily mean that the established custodial environment will have been modified. Brown v. Loveman, 260 Mich App. 576 (2004). If the required parenting time adjustments will not change whom the child naturally looks to for guidance, discipline, the necessities of life, and parental comfort, then the established custodial environment will not have changed. See id. The court may not “`change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.'” Id. at 585, quoting MCL 722.27(1)(c).

Here, the trial court found that the proposed change of schools would modify the established custodial environment because the 60-mile distance between the proposed schools and plaintiff’s home “would … impinge on the father’s ability to provide educational guidance, discipline, and the necessities of life.” Pierron vs. Pierron, 486 Mich 81 (2010).

Changing Your Name in a Divorce

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Pater Law
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Divorce Lawyer

A divorce judgment can contain a special paragraph restoring a party to a maiden name or giving the party another name. One can also go through Probate Court to change his or her name. See for name change document. The third way to change your name is simply to start using a new name under the common law. The only restriction being is that it not be done for a criminal purpose. The Court has acknowledged the different methods of effectuating a name change in Piotrowski v Piotrowski, 71 Mich App 213, 216; 247 NW2d 354 (1976): In Michigan, as in most states, a statute authorizes procedures by which a court can, upon petition, change the name of any person. MCL 711.1. Such change of name statutes do not abrogate or supersede the common law. To the contrary, they affirm the common law right and afford an additional method by which a name change may be effected as a matter of public record.

Steps to Obtaining a Divorce in Michigan

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Pater Law
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Divorce Lawyer

1. Retain a Michigan divorce attorney who will assist you and with whom you feel comfortable.

2. Your attorney will confer with you to answer your questions and to obtain the necessary information. To facilitate the filing of a divorce, you may request that we send you a divorce questionnaire. Send your email request to rpater@paterlaw.net and request a divorce questionnaire for a filing either with or without minor children.

3. Your attorney will prepare the following documents:
a. Case File Information Form
b. Summons
c. Complaint for Divorce
d. Record of Divorce or Annulment

AND IF THERE ARE MINOR CHILDREN:

e. Verified Statement
f. Uniform Child Custody Jurisdiction Act Affidavit.

4. The documents get filed with the Court along with the $150.00 filing fee.

5. Copies of the Summons get returned to your attorney.

6. Defendant is served with a copy of the documents.

7. If there are minor children the Friend of the Court will schedule a Coordination Conference with both parties to attempt to settle custody, support, and parenting time issues on an interim basis.

8. If there are minor children there is a six-month waiting period. If no minor children, there is a 60-day waiting period before the divorce can be finalized. This is the shortest period in which a divorce can be granted.

9. Settlement discussions will usually occur during the waiting period.

10. There may be a need for discovery. The purpose of discovery is to allow the parties to have access to material that will assist them in preparing and trying their cases. There may be three forms of discovery.

a. Interrogatories. Michigan allows written interrogatories (questions) to be sent to the other party. They are required to give written answers, under oath (notarized), to the written questions. Interrogatories can help discover information necessary to initiate intelligent settlement discussions or to prepare for trial. If the opposing attorney sends interrogatories for you to answer, we will normally ask you to prepare rough draft answers, which we would then prepare in a proper form.b. Depositions. In some cases, the attorneys will schedule depositions. The attorney will then ask the opposing parties questions in the presence of a court reporter. The court reporter accurately transcribes both the questions and the answers. If your deposition is scheduled, we would assist you and be present during the deposition.c. Requests For Documents. Either party may request the production of documents from the other party, and may use the subpoena power of the Court to obtain documents, compel the appearance of a witness, and to obtain documents in the hands of a third party, such as an employer or bank.

11. If settlement discussions have been successful or if the other party failed to file an answer to the Complaint within 21 days after being served, we may prepare a proposed Judgment of Divorce.

12. If there has been a default or the parties has agreed on the terms of the Divorce Judgment, then we will schedule a pro-con hearing where you will testify briefly in support of the allegations in your complaint and request that the Court enter the proposed Judgment.

13. If settlement discussions have not resulted in settlement, then we must prepare for trial.

14. If there is a trial, we must prepare a judgment that complies with the Court’s oral opinion.

If retained as your attorneys, feel free to call us with your questions at 616.396.8883. As your attorneys, we will try to keep you informed by providing you with copies of all correspondence and legal documents associated with your case whether they are received by this office or are produced by this office to be sent to the opposing party. We will try to assist you during what may be a difficult time

Legal Separation/Separate Maintenance in Michigan

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Pater Law
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Divorce Lawyer

Michigan does not have an action for legal separation, but we do have an action for Separate Maintenance. The initial filing is almost identical to the filing of a Divorce, and when a Judgment enters the parties are divorced economically or financially, but they are not divorced from the bonds of matrimony.

Sometimes parties add special language to a Judgment of Separate Maintenance that provides that if either party wants to turn the Judgment into a Judgment of Divorce they may do so within six months and then the Court will not require that a new case be filed and the Court will waive the statutory waiting period before a Judgment of Divorce can enter.

Why file for a Judgment of Separate Maintenance? Most people do so for one of three reasons:

  1. They do not believe in divorce for religious reasons.
  2. The other spouse needs continuing medical coverage that might be automatically terminated in the event of divorce, although some policies will also terminate upon entry of a judgment of Separate Maintenance. To prevent the loss of insurance, it may be advisable to enter into a detailed post-nuptial agreement,
  3. To allow the other spouse to remain in the country, if the other spouse s allowed entry only because of marriage to a citizen.

If one party files an action for Separate Maintenance, the other party may file an counterclaim for divorce. (MCLS 552.7 (4).

The statute provides what must be included in the terms of a Judgment of Divorce or of Separate Maintenance:

552.101 Judgment of divorce or separate maintenance; provision in lieu of dower; determining rights of wife or husband in and to policy of life insurance, endowment, or annuity; discharge of liability on policy; determination of rights; assignment of rights.

Sec. 1

(1) When any judgment of divorce or judgment of separate maintenance is granted in any of the courts of this state, the court granting the judgment shall include in it a provision in lieu of the dower of the wife in the property of the husband, which shall be in full satisfaction of all claims that the wife may have in any property that the husband owns or may own in the future or in which he may have any interest.

(2) Each judgment of divorce or judgment of separate maintenance shall determine all rights of the wife in and to the proceeds of any policy or contract of life insurance, endowment, or annuity upon the life of the husband in which the wife was named or designated as beneficiary, or to which the wife became entitled by assignment or change of beneficiary during the marriage or in anticipation of marriage. If the judgment of divorce or judgment of separate maintenance does not determine the rights of the wife in and to a policy of life insurance, endowment, or annuity, the policy shall be payable to the estate of the husband or to the named beneficiary if the husband so designates. However, the company issuing the policy shall be discharged of all liability on the policy by payment of its proceeds in accordance with the terms of the policy unless before the payment the company receives written notice, by or on behalf of the insured or the estate of the insured, 1 of the heirs of the insured, or any other person having an interest in the policy, of a claim under the policy and the divorce.

(3) Each judgment of divorce or judgment of separate maintenance shall determine all rights of the husband in and to the proceeds of any policy or contract of life insurance, endowment, or annuity upon the life of the wife in which the husband was named or designated as beneficiary, or to which he became entitled by assignment or change of beneficiary during the marriage or in anticipation of marriage. If the judgment of divorce or judgment of separate maintenance does not determine the rights of the husband in and to the policy of life insurance, endowment, or annuity, the policy shall be payable to the estate of the wife, or to the named beneficiary if the wife so designates. However, the company issuing the policy shall be discharged of all liability on the policy by payment of the proceeds in accordance with the terms of the policy unless before the payment the company receives written notice, by or on behalf of the insured or the estate of the insured, 1 of the heirs of the insured, or any other person having an interest in the policy, of a claim under the policy and the divorce.

(4) Each judgment of divorce or judgment of separate maintenance shall determine all rights, including any contingent rights, of the husband and wife in and to all of the following:

(a) Any vested pension, annuity, or retirement benefits.

(b) Any accumulated contributions in any pension, annuity, or retirement system.

(c) In accordance with section 18 of 1846 RS 84, MCL 552.18, any unvested pension, annuity, or retirement benefits.

(5) For any divorce or separate maintenance action filed on or after September 1, 2006, if a judgment of divorce or judgment of separate maintenance provides for the assignment of any rights in and to any pension, annuity, or retirement benefits, a proportionate share of all components of the pension, annuity, or retirement benefits shall be included in the assignment unless the judgment of divorce or judgment of separate maintenance expressly excludes 1 or more components. Components include, but are not limited to, supplements, subsidies, early retirement benefits, post-retirement benefit increases, surviving spouse benefits, and death benefits. This subsection shall apply regardless of the characterization of the pension, annuity, or retirement benefit as regular retirement, early retirement, disability retirement, death benefit, or any other characterization or classification, unless the judgment of divorce or judgment of separate maintenance expressly excludes a particular characterization or classification.”

The Judgment might also contain terms regarding: Change of name, spousal support, custody, parenting time, child support, real estate, business interests, and custody of pets.

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