Services - Gold Family Law

Divorce

Michigan is a “no-fault” divorce state, which means that a divorce case may be initiated without alleging a reason or fault by either spouse for the divorce. Michigan law requires only 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.” If an agreement is reached between you and your spouse on all settlement issues, fault may not be a factor. If there is a dispute about property, child or spousal support, parenting time, or custody, fault may become an active ingredient in resolving these issues.

In addition to the “no-fault” divorce, Michigan offers two alternatives: separate maintenance and annulments. To learn more, read our blog post “3 Ways to End a Marriage in Michigan.”

Property Division

Property of the marriage is to be divided equitably. Generally, this means that property of the marriage is divided 50-50. Fault may affect this distribution.

The parties usually arrive at a settlement of all their property rights after negotiation or after mediation. If a settlement is not reached, the matter will be decided by the court or, if both parties so choose, by an arbitrator, after the trial is concluded.

Once a settlement of property issues has been written and signed or placed on the record in open court, it may not be modified, except in cases of fraud, clerical error, mistake, or gross unfairness in the initial trial.

In order to devise a property settlement, we must understand the value of each of the assets that are in the marriage. This includes, but in no way is limited to, your home, any second or additional homes, any other real property interests, any interest in a business by you and your spouse, vehicles, stocks and other investments (mutual funds, stock options, etc.), retirement assets (IRAs, 401Ks, pension plans, deferred compensation plans, etc.), bank accounts, safety deposit boxes and valuable artwork, antiques or other such collections. We must also know the extent of any liabilities.

If either spouse has any interest in a business, then we may retain the services of an expert in the area of business valuations to assist in placing the correct value on this important asset.

If your property includes retirement or pension plans, I will explain how interests in such plans are divided as well as your rights under the qualified domestic relations order procedures.

Property settlements in judgments may be enforced by execution, garnishment, show cause proceedings, etc. If relevant, I will explain these procedures to you.

In determining property issues, the court will usually consider the following:

the length of the marriage
the contributions of the parties to the marital estate
the ages of the parties
the health of the parties
the life status of the parties
the necessities and circumstances of the parties
the earning abilities of the parties
the past relations and conduct of the parties
general principles of equity

Child Custody

Child custody can be one of the most traumatic aspects of a divorce. Where children are present legal custody (the decision making part of raising a child) and physical custody (where the children will live a day to day basis) must be determined. Each of these forms of custody can be held solely or jointly.

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The basis for determining child custody is “the best interests of the child.”

A party involved in a child custody matter should become acquainted with the Child Custody Act and study and be prepared to discuss the following factors in the CHILD CUSTODY ACT OF 1970 (EXCERPT).

As used in this act, “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:

The love, affection, and other emotional ties existing between the parties involved and the child.
The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
The permanence, as a family unit, of the existing or proposed custodial home or homes.
The moral fitness of the parties involved.
The mental and physical health of the parties involved.
The home, school, and community record of the child.
The reasonable preference of the child, if the court considers the child to be of sufficient age to express a preference.
The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
Any other factor considered by the court to be relevant to a particular child custody dispute.

It should be remembered that the child’s preference, although important, is just one factor to be considered. It is not in the child’s best interest for a parent to try to convince a child to have a preference by promises or threats or to discuss the divorce case with the child. This should be an “adult discussion”.

Due to the extensive nature of custody disputes and the laws involved, this subject is best left to an in-depth discussion with your lawyer.

Parenting Time

Parenting time is the time the non-custodial parent (the parent who does not have the child living with him or her most of the time) spends with the child. See the Michigan (MDHHS) Parenting Time Guideline for additional information. The court order will indicate who has custody and who has parenting time.

The divorce judgment may order general parenting time, leaving it up to the parties to decide the dates; or it may provide specific parenting time hours and dates. If long distances must be traveled to exercise this parenting time, arrangements may be made to share the cost. Parenting time rights may be enforced in the same manner as rights to spousal support. Judgments of divorce provide that the minor child may not be permanently removed from the jurisdiction of the court without the court’s approval.

Spousal Support

Spousal support, also called alimony, is a sum of money usually paid by one spouse to another spouse for the support and maintenance of the spouse. The factors the court considers in awarding spousal support are as follows:

The past relations and conduct of the parties (fault).
The length of the marriage.
The ability of the parties to work and their respective incomes.
The source and amount of property awarded to the parties.
The ability of the parties to pay spousal support.
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.
The age and educational level of the person claiming spousal support.

Generally, judgments of divorce in which spousal support is not granted must either expressly reserve the question of spousal support or rule that neither party is entitled to spousal support.

Business Valuation

During the process of a divorce all assets and liabilities will be reviewed and divided between the two parties through a process called equitable distribution. If a business is owned by one or both of the parties, ………

Valuing a Business

If one or both spouses own part of a business, then that ownership may be considered property that has to be valued as part of the divorce proceedings. To determine the value of this ownership interest, a certified forensic accountant will look at:

Assets and Debts – This includes tangible property, such as equipment and inventory, as well as intangible property, such as patents and “goodwill” (customer relationships). The valuation will also account for any money the business currently owes.
Business Profits – To find the business’ profit, the accountant will look at how much income the business makes as well as the business’ expenses, such as equipment rentals, rent, and employee salaries. The profit is the income minus the expenses.
Increased Value – Depending on how long the business has been owned by either of the parties, the accountant may try to determine whether the value of the business has increased since the marriage. Any increase (or decrease) in value may also be subject to property division in the divorce.
Valuation Date – The Valuation Date represents the point in time when the marital property is being Appraised (Valued). This is very important because a property value can vary depending on the date used for valuation. This date is discretionary, but in Michigan it will usually be the date the divorce was filed.
When valuing a business there are two different methods for determining the value. The first is the book value method, which bases values directly on the company’s bookkeeping and then adjusts for depreciation (due to normal wear-and-tear) or appreciation (due to increased value since the items were acquired). The second, and more common, method is the market approach method. This method values the business at what a buyer would pay to acquire the business based on its presumed earning capacity.

Post Divorce

After your divorce, there may be ongoing issues or concerns that need continued support. We’re here for you.

Spousal Maintenance
Child support
Alimony
Spousal Support
Estate Planning

Prenuptial Agreements

A prenuptial agreement in Michigan is a written contract created by two people before they are married. A “prenup” typically lists all of the property each person owns (as well as any debts) and specifies what each person’s property rights will be in the case of divorce or death.

In Michigan, a prenuptial agreement can cover anything not prohibited by law that doesn’t encourage divorce.

Prenuptial agreements can cover any of the following:

division of property, business interests, and financial accounts
whether each spouse will keep their own retirement accounts or whether they will be divided
each spouse’s ability to manage the couple’s assets during the marriage
whether one spouse will pay the other alimony, as well as the amount and duration of payments
how life insurance proceeds will be divided
support or inheritance of children from prior relationships
what happens if one spouse dies during the marriage, and
whether one or both spouses must make a will to carry out the terms of the agreement.

In Michigan, for a prenuptial agreement to be enforceable, it must be:

fair, equitable, and reasonable under the circumstances
entered into voluntarily, with full disclosure, and all rights and waiver of rights fully understood
free from fraud, lack of consent, mental incapacity, or undue influence
the facts and circumstances can’t have changed so much since the agreement was signed that it would be unfair or unreasonable to enforce it, and
both spouses must sign the agreement.