Michigan Divorce Lawyers Blog

Tips to Stay Out of Court After Divorce (Custody)

Tue, 27 Mar 2012 00:50:20 -0500

When I finalize a divorce judgment, I try to take the time to walk my client through the judgment of divorce to give him/her tips on how to stay out of court. When children are involved and the divorce was fairly contentious, there may be problems between the parents and the kids get caught in the cross-fire. Of course, it should go without saying that the kids should not be brought in the arguments between the divorced parents. Sadly, many parents lose sight of this basic rule of thumb and allow their kids to witness boorish, if not abuse behavior between the parents.

So, in order to avoid this stress and in an effort to foster an environment where the parties can co-parent, I give my client two words to follow in their post-divorce life: courteous and professional. That is, always speak to your ex-spouse politely and in a professional manner. Your ex-spouse may try to get on your nerves and/or try to bait you. . .don't bite. Simply ignore the undesirable behavior and keep your communications brief. Now, this doesn't mean that you should give your ex-spouse the cold shoulder or refuse to have social interaction with your ex-spouse. Use common sense. It's certainly better if the two of you can get along; it helps the children adjust if they know their parents get along. In some cases, where the parties don't get along, the kids will play one parent against the other in an effort to get his/her way.

Another effective strategy to bring peace to your post-divorce life when there are kids involved is to document all of your communications with your ex-spouse. I always recommend the use of e-mail. Texting works for money divorced parents but if you have an ex-spouse you cannot trust, then text messaging may not be the best mode of communication. Even if you receive a call from your ex, to the extent you believe necessary, follow up the call with an email. Some jurisdictions have family communication services where you send all of your messages to your ex in a monitored site where all communications are saved so there can be no manipulation of words as they are preserved! Of course, the better you get along as ex-spouses, the better it is for the kids and hopefully, you can communicate without needing to document every word you utter to each other.

Again, it's best if the two of you can get along and co-parent amicably. In that case, there may not be a need to employ any of the mentioned strategies. Unfortunately, there are many cases where the strategies do not work and either one spouse is continually violating the judgment/order or one party simply refuses to co-parent. So, at that point, the best strategy may be to involve the court and file a motion that applies to your situation (i.e. change custody, modify parenting time, suspend parenting time [only when there are urgent situations].

Legal Separation or Divorce?

Tue, 20 Mar 2012 00:39:19 -0500

Whether to file for a legal separation or divorce is a complicated decision that you need to discuss with an attorney. In either case, there has been a break down in the marriage. I recently had a client who filed for divorce but during the mediation process, we agreed to convert the case to an action for separate maintenance. The advantage to my client's wife was that she was able to maintain her health insurance through my client's former employer from which he was retired. Be sure to check with the employer, human resources or the health care company directly to ensure benefits will not be suspended in the event of legal separation.

Legal separation does result in a final division of marital assets but the parties are still married and therefore cannot re-marry. If you have gone through a legal separation, but you later decide you want to divorce, you can petition the court to convert your judgment of separate maintenance to a divorce judgment.

In addition to not being able to re-marry, one other potential pitfall of legal separation is cost. It is rare for people who are legally separated to reconcile though it does happen. So, if you're in the majority, you may want to consider saving yourself some money (and aggravation) and simply file for divorce rather than separation because the likelihood of divorce is so substantial. Again, this is a personal choice and the client must decide which route to go.

Divorce and Co-Parenting

Sun, 04 Mar 2012 23:25:24 -0500

When parents make the difficult decision to file for divorce, the impact on the children's lives can be devastating if the parents cannot (or will not) co-parent. Co-parenting is part and parcel to the legal concept of joint legal custody. Michigan divorce law favors joint legal custody so that both parents are involved in making decisions that affect major aspects of a child's life (i.e. health, education, religion). It is now rare in Michigan divorce law for one parent to have sole legal custody. As a result, the parents must cooperate, or co-parent in a way that shows the children that even though the parents are no longer married, they still love their children enough to continue working together to ensure the children lead happy and successful lives.

Too often one or both parents cannot look past the emotion of the divorce and the children get stuck in the middle as the parents argue over even the most mundane issues. However, it is very important for parents, even if they have to act, that they show they children mom and dad are making joint decisions regarding their children's lives. Kids catch on quickly. . . if they feel they can play one parent against the other, they will do it. Or, the parents' failure to get along can cause the child to feel like he/she was the cause of the divorce.

Parents must try to put their differences aside so that their children don't get caught in the cross-fire. If you notice your child is acting differently, perhaps withdrawn or temperatmental, then you should work hard to try and be on the same page as your ex-spouse. Several courts have programs that provide education to parents (i.e. SMILE program) to show them the benefits of co-parenting and to also discuss the damage that can be caused to children when parents cannot get along following a divorce.

Parents should also consider taking the children to counseling so they can share their feelings with someone they are not afraid to disappoint. The counselor may want to involve the parents in the counseling so parents should go into counseling with an open mind. Eventually, the goal is for the parents to get along after the divorce so that they can work together for the benefit of the children.

Is It Important to File Divorce First?

Mon, 30 Jan 2012 15:37:41 -0500

Clients often ask me if it is important for them to file for divorce first. There are a few advantages which I will discuss, but generally speaking, since Michigan is a No Fault divorce state, it doesn't matter who files first. Either party can file, and even if the other spouse doesn't want a divorce, the divorce will proceed once a complaint is filed. There are a number of statutory requirements that must be included in the complaint that I will discuss in other posts, but suffice it to say, Michigan actually mandates that parties do not allege fault in the complaint. So, the person filing first gets the ball rolling but doesn't necessarily gain a tactical advantage.

The person filing first is called the plaintiff. The other party is the defendant. Unlike in criminal matters, the defendant is not an accused wrong-doer. . . these terms are used merely because divorce is an adversarial proceeding. Nevertheless, a divorce case does not need to be a battle and in fact, it is usually in everyone's bests interests if the parties can resolve the issues as amicably as possible.

In cases where there is abuse (which comes in many forms. . . again, a topic for another post) or financial manipulation, the person filing first can ask the court to enter ex parte orders that preserve assets, maintain the status quo and even provide personal protection. You are in the best position to decide if these risks exist in your situation and you should discuss the potential benefits of filing first with your divorce attorney.

Another potential advantage to filing first and being the plaintiff is that the plaintiff's attorney typically prepares the proposed judgment of divorce. I always like being the divorce attorney in control of the judgment if at all possible. Nevertheless, even in cases where I'm representing the defendant, I have frequently taken over the drafting of the judgment.

So, if you're unsure as to whether you want to file your divorce first, call me for a free consultation and I'll be glad to discuss the potential advantages.

Charlie Sheen's Custody Issues

Mon, 07 Mar 2011 13:06:42 -0500

Celebrities such as Charlie Sheen seem to constantly be in the news while their divorces or custody battles take center stage. One wonders if that's the way these celebrities like it while the average person doesn't want anyone to know his/her business.

In Sheen's case, the unfortunate scenario appears to be a situation where both parents have had their share of problems. That really puts the judge in a conundrum because the judge's obligation is to consider any custody decisions in light of what he/she believes is in the best interests of the minor children.

Of course, the law and how it is applied varies from state to state. In Michigan, there are 11 best interest factors for the court to consider. They are all given equal value so even when the a minor child has a preference, that is only one factor. All of the factors must be considered by the court unless the parties can come to an agreement.

In Sheen's case, no agreement appears forthcoming and each side, despite his/her problems, is fighting desperately for an advantage. What motivates them? Well, in Sheen's case, he appears to be obsessed with "winning". What is truly a win for the children is when the parents can agree on an arrangement and when the parents can get along for the long haul. The media has fueled these public battles in a manner that is ultimately detrimental to the children.

Hopefully, Sheen and his divorce attorneys/advisors will stop trying to litigate his divorce in a public forum and the parties will work out a resolution that is truly in the best interests of the children. That would constitute a "win" for the kids!

Resource: Charlie Sheen's "Goddesses" Focus of Custody Battle, Vancouver Sun, March 3, 2011

Thinking of moving out of state with child after divorce?

Thu, 10 Feb 2011 00:36:21 -0500

When there are children involved in a divorce proceeding, it is encumbent upon the parents to foster and encourage a positive relationship with the other parent regardless of how contentious the divorce may have been. The divorce results in a realignment of the family unit which can be followed by further changes that were never even contemplated during the divorce.

One such change is that one of the parents may have an opportunity to move beyond the 100 mile restriction that is contained in all divorce judgments. Common reasons for such a move is to be closer to other extended family that can help raise the children or for a new job opportunity. Either way, the parent requesting the change in domicile must either obtain the agreement and consent of the other parent or if there is no agreement, the parent requesting the move must prove that the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent, that the move is not an effort to deprive the other parent access to the child(ren), that it is possible to fashion a schedule that continues to foster a relationship with the other parent, that the moving parent is not trying to secure a financial advantage over the other parent to reduce a child support obligation and consider whether there is any history of domestic violence.

In McKimmy v. Melling, a recent case decided by the Michigan Court of Appeals, the trial court was found to have misapplied the third factor by simply concluding that the proposed parenting time schedule was not the best plan; but this decision was reversed and sent back to the lower court so that it could deterimine whether the parenting time schedule proposed by plaintiff provided "a realistic opportunity" or "an adequate basis," to preserve and foster the relationship the non-moving parent had with the children.

So, if you are considering a move out of state with your children following divorce, you should consult an experienced Michigan divorce lawyer to consider whether you believe you can prove the above factors can be satisfied in your case.