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Divorce

“If you wake up and don’t want to smile,
If it takes just a little while,
Open your eyes and look at the day,
You’ll see things in a different way.
Don’t stop, thinking about tomorrow,
Don’t stop, it’ll soon be here,
It’ll be, better than before,
Yesterday’s gone Yesterday’s gone.
Fleetwood Mac ©1977 Rumors LP

If your considering a divorce, it should be considered as THE LAST AND ONLY RESORT.  Unlike marriage, a Michigan divorce does not required mutual consent.   If one of the partners in the marriage feels  the love once shared that  brought you to marry is lost ( there has been a breakdown in the marriage relationship such that the objects of matrimony have been destroyed)  and there seems no chance you will share that love you had together ever again (and there remains no reasonable likelihood that the marriage can be preserved ),  that is virtually the only thing required by statute for a court in Michigan to grant a divorce.  However, most marriages often have more than just the two original partners to consider.  The courts in Michigan being a “no fault”  equitable distribution divorce state. unlike some community property states such as California,Texas, Arizona and Nevada are not required to split property 50/50. Judges have considerable leeway when making property awards, as it is with child custody to consider the aspects of “fault” including things like date of separation, amounts of contact following separation and whether the divorce was due to a cheating spouse. Fault may not however, be used as a punitive basis for an inequitable division. McDougal v McDougal, 451 Mich 80, 545 NW2d 357 (1996)..

Michigan does recognize the validity of anti and post nuptial contracts provided they are freely and voluntarily entered, signed and dated by both parties, after full disclosure of each parties assets. The decisions in Rinvelt v Rinvelt, 190 Mich App 372, 475 NW2d 478 (1991); and Reed v Reed, 265 Mich App 131, 693 NW2d 825 (2005), impose a requirement of ostensible fairness. It is also necessary that the facts and circumstances remain unchanged since the agreement was executed, to make its enforcement fair and reasonable. Pre Nuptial agreements are made by the parties prior to the marriage, the consideration being the actual marriage. Postnuptial agreements are made by the parties during their marriage to govern the disposition of their property and their rights and obligations regarding support if their marriage terminates;Lentz v Lentz,271 Mich App 465, 721 NW2d 861 (2006), and Wright v Wright, 279 Mich App 291, 761 NW2d 443 (2008).

How then will the property be divided, the bills the debt?; What about our children? How will I and the children survive after the divorce?; What will I do until I can get back on my feet; until the children are old enough to make it on their own?; Do we have a choice in determining the answers to these questions?; The answer is YES!. Relevant factors considered by Michigan courts when dividing marital property include: “ (1) the duration of the marriage, (2) contributions of the parties to the marital estate, (3) age of the parties, (4) health of the parties, (5) life status of the parties, (6) necessities and circumstances of the parties, (7) earning abilities of the parties, (8) past relations and conduct of the parties, and (9) general principles of equity.” Sparks v Sparks, 440 Mich 141,485 NW2d 893 (1992).

Q. DOES A DIVORCE EFFECT MY SPOUSAL RIGHTS IN MY EX-SPOUSE’S WILL?
A. YES. Current Michigan law states;
MCL §700.2801 Effect of divorce, annulment, decree of separation, bigamy, and absence.
(1) An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he or she is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
(2) For purposes of parts 1 to 4 of this article and of section 3203, a surviving spouse does not include any of the following:
(a) An individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they subsequently participate in a marriage ceremony purporting to marry each to the other or live together as husband and wife.
(b) An individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third individual.
(c) An individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.
(d) An individual who, at the time of the decedent’s death, is living in a bigamous relationship with another individual.
(e) An individual who did any of the following for 1 year or more before the death of the deceased person:
(i) Was willfully absent from the decedent spouse.
(ii) Deserted the decedent spouse.
(iii) Willfully neglected or refused to provide support for the decedent spouse if required to do so by law.

Q. CAN I COLLECT SOCIAL SECURITY BENEFITS FROM AN EX-SPOUSE?
A. Social Security is often undervalued in divorce negotiations. If a spouse has a claim to your benefits, that amount may be figured into negotiations for spousal or other support payments. In a nutshell:
(1) You must be at least 62 years old.
(2) You must have been married for a minimum of 10 years.
(3) If your ex hasn’t yet filed for benefits but is eligible, you must have been divorced for two years.
(4) You must be currently unmarried. If you did remarry, that marriage must have ended.
(5) If you’re under your full retirement age (FRA), the benefit based on your own work record must be less than the spousal benefit from your ex.
If you have more than one ex-spouse (with a minimum 10-year marriage), you can collect on either spouse’s record, but not both. Likewise, you can’t collect simultaneously on your own work record and an ex’s. It’s one or the other.
You can check how much you’re entitled to and your spouse’s payouts (if you have their Social Security numbers) at ssa.gov.

When considering the “Best interests of the children“, Michigan Statute requires a court to consider evaluate and determine the following factors MCL § 722.23;
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) 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.
(c) 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.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) 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.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.

DOES MICHIGAN RECOGNIZE SEPARATION AGREEMENTS?
A complaint for separate maintenance, sometimes called legal separation, is seldom used in Michigan. Since Michigan is a no-fault divorce state, it is not necessary to prove to the court that the parties have been separated for a minimum period of time. In some fault or quasi-fault states, the state requires proof of a separation for a requisite period of time before the parties are eligible for the divorce. Furthermore, because divorce is more accepted now than in the past, fewer clients seek separate maintenance to avoid the social stigma of divorce.

A complaint for separate maintenance is identical to a divorce complaint, except that the plaintiff is not requesting a divorce from the bonds of matrimony but is requesting separate maintenance. This request is specified in the relief paragraph.The most troubling aspect of separate maintenance is that it looks like a divorce but the parties are still legally married. Therefore, they are still bound together for the purposes of filing taxes, insurance benefits, and dower and are not free to explore other relationships without potentially engaging in adultery. It also impairs the parties’ ability to grieve the loss of this marriage and get on with their lives. Occasionally, however, a client will request such relief for religious reasons or to continue spousal status on certain benefits, such as health insurance.

I have years of experience in helping once loving families get through the pain and anguish often associated with divorce.  Allow me to assist you in making the right decisions!

Put this experience and knowledge to work for you NOW:
email prj@prjoneslaw.com.

 

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