Michigan is known as a "no fault" divorce state. Sometimes the words "no fault" are misleading. If the parties can agree between themselves on a final settlement on all issues, fault may not be a factor. In other words, even if one spouse is at fault, a party may not hold that fault against the other and may agree to an equal division of the assets. On the other hand, knowing that at trial the judge can take fault into consideration and skew the property settlement in favor of the party who was not at fault, can make an innocent spouse hold out for a larger share of the assets.

Fault may be very much at issue if there is a dispute about alimony, property, child support, parenting time or custody. You will want to discuss how fault may factor into your divorce.

The basis for divorce is Michigan is governed by a statute and the single grounds for a divorce is this: "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." Most judges don't require the parties to provide details, and may require only a recital of this assertion.

Legal Separation

In Michigan, if parties do not want a divorce, but wish to live apart, they can ask the court for a legal separation that is known as "separate maintenance". In a separate maintenance action, the parties' assets are divided. Spousal support may be awarded. If there are minor children, the issues of custody and child support will be included. So, this is similar to a divorce, except that the parties remain married and neither may remarry.

Custody

The issue of who will be the custodial parent after a divorce or parentage action can be very emotional and traumatic for the parents. This is truly unfortunate since most of these parents will be co-parenting for many years to come. I've heard judges say that the best decision about custody is usually made by the parties and that leaving the decision to a judge who has little knowledge of the family dynamics is a bad idea. I could not agree more. Early mediation can help parents to make decisions before they become polarized or feel backed into a corner that each needs to defend.

There are really two components of custody. Legal custody determines which parent shall make the major decisions for the child during the child's minority. Physical custody determines who will be the predominant custodial of the child.

Legal custody - Where one parent shows little interest in the child, a court might award sole legal custody to the other parent. An award of sole legal custody occurs more frequently in a paternity case. This may have something to do with the fact that the father may be unrepresented by counsel. Another instance where sole legal custody might be awarded to only one parent is where the parents have demonstrated no capacity for making joint decisions in a civilized manner. But, generally, Michigan courts will award joint legal custody. It's important to realize that every case is dependent upon it's particular facts. It is the unique facts relating to a family that may warrant a deviation from the normal situation, where both parents have joint legal custody.

Physical custody - Physical custody usually means that one parent will be the primary physical custodial of the child or children. However, joint physical custody is possible, particularly where both parents are highly invested in their children's lives. More and more, I'm seeing the use of the term "shared care arrangement." And, in fact, the terms "joint custody" and "shared care arrangement" can really mean anything that the parties intend them to mean. Sometimes, these terms can help to resolve custody disputes simply by not making one parent feel inferior to the other.

How a court determines who will have custody if the parties cannot agree - If the parties are unable to agree on which shall have custody or whether they can or will share custody, the court is bound to decide the issue using the Michigan Child Custody Act, specifically that section that defines "the best interests of the child." Each case is highly dependent upon its specific facts. If you have questions about how the court might decide your case, call Attorney Joseph Fletcher to schedule an appointment for a thorough discussion. First, complete the divorce questionnaires, here. Then either call (269) 281-0035 or email Attorney Fletcher at attorneyjosephfletcher@gmail.com

To schedule an initial meeting with Attorney Fletcher or to ask a question, call or send an e-mail today.

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