FAQs Faupel, Fraser & Fessler Attorneys Ann Arbor Michigan

You have to be a resident of Michigan for 6 months and of the county in which you file for at least 10 days. Either the plaintiff or the defendant can meet this requirement.

In Washtenaw County it is currently $150 without children $230 with minor children. Attorney fees and subsequent court costs vary depending on the case.

There is a 2 month waiting period from when the complaint is filed to when the divorce is complete in cases without minor children and a 6 month waiting period in cases with minor children. Once the waiting period expires, the divorce may take anywhere from an additional month to over a year depending on how easily the parties can agree on the issues.

There is physical custody and legal custody. One party may be awarded custody or it may be shared between the parties.

Physical custody involves where the children live and what the parenting plan (or visitation schedule) is. If parties have similar amounts of time with the children, they have "shared physical custody," even if it is not exactly 50/50. If one party has significantly more time with the children than the other parent, that parent has "primary physical custody" or "primary physical possession" of the children.

Legal custody is the right to participate in major decisions affecting the children, such as whether or not to have surgery, whether or not to attend a private school, whether or not to get therapy or counseling or an abortion. Legal custody usually involves issues regarding third parties such as the doctor, the teacher, or the therapist.

The court applies what is known as the "best interests test." It has 12 factors including such things as: love, affection; the capacity and disposition of the parties involved to care for the children; the reasonable preference of the child, (if the court considers the child to be of sufficient age to express preference); and domestic violence. Your attorney can provide you with more detailed information on the factors and how they will be considered in your particular case.

There are many ways that legal custody is decided. First, a party requests what he/she wants in the complaint for divorce or the answer to that complaint.

If legal custody is disputed, or physical custody is disputed, the court usually refers the case to the Friend of the Court.

The Friend of the Court meets with the parties individually or jointly and may interview the child(ren) if he/she/they are old enough (generally 6-7 years old or older). The Friend of the Court evaluator may also talk to teachers, friends, family members and other parties in the course of the investigation as well as reviewing report cards and other documents that are either requested or supplied by the parties themselves. Before the interview, the parties are given forms to complete which contain information that is necessary.

After reviewing the information, the Friend of the Court evaluator issues a recommendation. The parties have 21 days to accept or reject the recommendation. If they both accept the recommendation, then the court can consider entering an interim order which converts the recommendation into an interim order of the court. If one or both parties reject the recommendation, then the court holds a hearing to determine the next step. At the hearing, the court could adopt the recommendation if it is consistent with the status quo or hold an evidentiary hearing to decide what the legal and physical custody should be during the pendency of the case. The court could also decide to send the case to a Friend of the Court "referee" for a hearing. The referee is an attorney employed by the Friend of the Court to preside at these hearings, which take place in a conference room of the Friend of the Court.

At a referee hearing, the parties are present as well as their attorneys. Witnesses can be called, but they are asked to remain in the hallway until it is time for them to testify.

After the referee hearing, the Friend of the Court Referee issues his/her recommendation, and again, the parties have 21 days to accept or reject that recommendation. If it is accepted, it may be time for the parties to agree to a judgment of divorce which includes the terms of the recommendation. If it is rejected, then the court will set a time for trial before the judge.

Are those my choices: Friend of the Court caseworker, Friend of the Court referee, or a trial before the judge?

No. Actually, the court now has the power to order people into mediation. A trained mediator presides and attempts to help the parties reach a settlement on one or more of the issues in the case. If the parties cannot reach a settlement, then the matter proceeds to trial.

Yes. Parties often reach a settlement themselves or with the help of their attorneys. Less than 10% of divorce or custody cases ever go to trial.

If the parties cannot agree on a plan, then the Friend of the Court, a mediator, or the judge will consider this issue. The same best interest factors are used as are used to determine custody.

There is no typical parenting plan. Decades ago, the mothers of young children were generally awarded custody under a statute. That statute has been repealed, and now fathers of young children can be awarded custody.

When parenting time is shared, there are many ways to divide the time, including:
--every other week
--two weeks on and two weeks off
--Monday through Thursday in week #1 and Monday through Wednesday in week #2
--Monday through Friday in week #1 and the other parent gets the weekend and then switching

Parties can design their own parenting plan. Often,extracurricular events and work schedules will affect the plan they choose.

Holiday visitation can be decided mutually by the parties or the Friend of the Court has a standard plan that can be used.

The Friend of the Court, or the court itself, will require the parties to produce tax returns or verified statements of income. If parties are self-employed, then the court will decide what expenses are justified. If parties are not employed at all, the court will decide if they have "unexercised ability to earn" and then perhaps "impute" the income they could, in fact, earn. Once income is known, then the Child Support Guidelines (a statewide, mandatory computer formula) are applied to compute the support.

Yes. There are two formulas. One applies to parents with 128 overnights or more a year, and one applies to 128 overnights or more a year. The one with 128 overnights/year or more is called the "shared economic responsibility" formula. The parenting plan with less than 128 overnights results in the traditional formula.

Child support is owed until a child turns 18 years old or graduates from high school, but in no event beyond the age of 19-1/2 years old.

The court cannot order you to pay for college expenses; however, if you and your spouse agree to have a provision included in the judgment of divorce that requires payment for college, then the court can enforce that promise just like any other contract.

There are several statutory factors that govern the distribution of property, such as: the duration of the marriage, contributions of the parties to the marital estate, age, earning abilities, necessities and circumstances of the parties, and equity.

The court starts by requiring the parties to identify all the property of the marital estate. Excluded from that is property that one party owned prior to the marriage and retained in his/her own name.

The next step is to evaluate or appraise the value of the property. If property that is owned individually actually appreciated during the marriage due to the active efforts of the party who owned it, then the court can include the amount of appreciation but not the underlying value. The parties have to remember to subtract any indebtedness associated with the property and just consider "net value."

As an aside, if there is a pension or retirement fund that was acquired partly during the marriage and partly after the marriage, the court generally includes only the portion that was earned during the marriage. This is called the "coverture fraction." In Michigan there is a chance that the court will include some or all of the premarital contribution to a retirement plan if certain criteria exist.

The last step is to sell or distribute the property. If it is sold, the parties usually split the net proceeds of sale. If it is distributed in kind, then the parties keep track of the value that is associated with that asset to be sure that in the end, the final distribution of all property and debt is fair.

There are some computerized formulas that attorneys use to get an idea of whether you will owe alimony and if so, how much and for how long. These formulas are not binding on the court like child support guidelines are.

The main purpose of alimony is to balance the incomes and needs of the parties in a way that would not impoverish either party. There is no sense of "entitlement" when it comes to alimony.

Some courts are unwilling to award any substantial amount of alimony unless the parties have been married for 10 years or more. Shorter marriages may warrant some form of "rehabilitative alimony."

In Michigan, parties can agree to an award of alimony that cannot be modified. The court itself cannot put these limits on alimony, but the parties can and then the court will enforce it.

What if after my divorce is final I want to change the custody arrangement for my children?

Michigan statutes provide as follows: The court shall not modify or amend its previous judgments or orders or issue a new order so as to 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. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.

During the initial divorce or custody proceedings, the court uses a "preponderance of the evidence" standard in determining who will prevail. This is something like 51% of the evidence in favor of the party seeking custody. Before a court will consider changing custody, a party must allege and prove that there either is "proper cause" for a change or there is a "change in circumstances," meaning something more than a minimal or insignificant change.

Then, if a party meets the threshold for changing custody by showing a change in circumstances or proper cause, that party must meet a higher burden or proof known as "clear and convincing." This is more like 75% of the factors favoring the party seeking custody. In a nutshell, it is a big mistake to settle for one form of custody believing you can just wait for a while and then petition for a change without many of the facts also changing.

Can I also ask the court to modify the property division after the divorce has become final?

The only grounds for modifying a property division after the divorce is final are grounds relating to fraud, mutual mistake, failure to disclose property or debt, and similar issues. Even then, a party has one year at the latest to file a motion to amend the judgment of divorce. If a case has gone to trial and there is a judgment from the court, the first option to contesting the judgment is an appeal to the Court of Appeals, which must be filed within 21 days of entry of the judgment.

Faupel, Fraser & Fessler is an Ann Arbor, Michigan law firm representing individuals and businesses throughout southeastern Michigan including Washtenaw County, Wayne County, Lenawee County, Livingston County, and the cities of Ann Arbor, Belleville, Brighton, Livonia, Northville, Plymouth, Chelsea, Dexter, Saline, Howell, Whitmore Lake and Ypsilanti. In addition, we can handle cases for clients in surrounding states.

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Frequently Asked Questions

Frequently Asked Questions for Family Law

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