Michigan Divorce Lawyers Blog

Some times, when a relationship is starting to crumble, emotions can run high. Certainly, there is never an excuse to justify committing an act of domestic violence on a spouse or a boyfriend/girlfriend. However, sometimes, situations arise and you find yourself baited into a situation you never expected or you do something impulsive and it leads to trouble.

Here's an example: let's say a wife suspects her husband is cheating on her. She goes to check his cell phone for text messages. The husband does not feel his wife has a right to check his phone so he goes to grab the phone. The two find themselves struggling to gain possession of the phone and in an instant, the phone smacks one of them in the face causing bleeding, a black eye, or broken nose, etc. Notice, I didn't indicate whether the injured person was the male or female. This can happen to anyone! What happens next is anyone's guess. . . the police may be called, someone may be charged with domestic violence and arrested, etc.

So, if your relationship is becoming increasingly volatile, the arguments are heating up, there is physical contact of any sort, etc., then you need to take steps to diffuse the situation. First, if you are a victim of domestic violence, you absolutely need to protect yourself and your children. Too often victims of domestic violence give the offender chances in hopes that he/she will change. Remember, domestic violence is not just the act of hitting someone. . . it can be intimidation, yelling/screaming, threatening, financial manipulation, etc. Nevertheless, if you are in physical danger, it is imperative that you protect yourself and your children by calling the police, pressing charges where appropriate and otherwise ensuring that the offender does not have access to you.

Second, I recommend you call me for a free consultation to discuss your legal options. You will want to know what your rights are before you make a decision to file for divorce, leave the home, etc. On the other hand, if you believe you have been falsely accused of domestic violence, you will want to talk to me about your legal options. Certainly, the pendency of a domestic violence case will affect divorce proceedings particularly if there are children. I cannot emphasize enough, even if your arguments have not risen to the level of domestic violence, you must do everything you can to ensure your children are not witnessing such arguments. The emotional damage that can be caused to children who witness these sorts of situations can be life long.

Third, I also recommend that if you and/or your spouse want to be serious about handling your arguments appropriately, you should consider counseling. Of course, the counseling would ideally come before divorce proceedings or before a situation rises to the level of domestic violence. However, people who have allowed their relationship problems to get to this level often never even consider counseling until it is too late to save the relationship. Nevertheless, you and/or your children should consider counseling even if the relationship cannot be saved so that you can deal with the immediate emotions but also develop strategies for dealing with the upcoming changes in your lives due to the pending divorce and/or domestic violence proceedings.

Finally, I cannot stress enough how important it is to manage the difficulties of your relationship with maturity. Unfortunately, some people never learn this lesson. So, if you are a victim of someone who engages in constant games, abusive behavior, etc., understand that the court is not likely to change that person and you are not likely to "get what you deserve" in a divorce proceeding. So often I hear clients who are victims of the other spouse's boorish behavior say "how can he/she get away with this?". . . remember, it's not the court system's job to change a person. The person must want to change. The courts are designed for you to get divorced and allow you to move on with your life. If you go into a divorce with a vengeful mindset, you are likely to be disappointed. That's not to say you should not fight for what you believe is fair when it comes to custody, parenting time and property division. In other words, if you are a victim of an abusive spouse, it is equally risky to have the "I just want this over with" mindset. Usually the best result is in the middle somewhere.

Call me to discuss your options any time. . . one thing I can promise you is that I am going to be straight with you. I always give my clients realistic expectations about the divorce process.

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.

I have discussed this issue in previous blogs but the question has come up so much lately that I felt like I needed to bring it up again.

In short, the answer to this often answered question is no. When a relationship gets to the point of divorce, there are many reasons one of the parties considers moving out of the marital home. Certainly, if you decide to file for divorce or your spouse files for divorce (and serves you), you have every right to live in the marital home throughout the divorce process (2 month minimum without children and 6 month minimum with children---topic for another blog). However, if the living situation is simply unbearable, you may consider moving out since you're going to be living separately anyway in a matter of months. Of course, if you plan to try and keep the marital home following the divorce, it doesn't make sense for you to move out.

Examples of unbearable situations may include abuse (physical, verbal, etc.), substance abuse or other obnoxious or harmful behavior. There are many factors to consider before you move out (i.e. cost, ensure your personal belongings do not disappear, etc.) but if for your own mental well-being, you believe moving out is necessary, you will not be punished in the divorce process for leaving (or abandoning as many people incorrectly put it) the marital home. The marital home will still be an asset/liability to be equitably divided during the divorce process whether you've moved out or not.

Keep in mind, if you move out of the marital home, the parties must still maintain the status quo. That is, all of the household bills must continue to be paid in the manner that they always have been paid. So, by moving out, you now have an additional set of expenses so you should not take this decision lightly inasmuch as your right to remain in the marital home can provide you some necessary transition time to plan for your new financial situation. In addition, if you have children and you move out of the marital home during the divorce (or in anticipation of divorce), there will need to be an interim (or temporary) custody, parenting time and child support order to ensure that each parent maintains a healthy relationship with the children.

I do highly recommend you consult with a lawyer before you make the decision to move out of the marital home either prior to or during the divorce process. Please contact me for a free consultation to discuss this and any other important issue you need to consider.

Individuals living in Grand Rapids, Zeeland, Holland or West Michigan that need assistance with divorce, custody, parenting time or child support cases now have options available to them through our office in downtown Zeeland, Michigan. We are pleased to bring our expertise in the family law arena to these areas. Too often, clients going through a divorce or custody battle do not have adequate representation or feel their choice of attorneys is limited. Now, we can handle your case with the care and attention you deserve. Importantly, we will work with our clients on payment plans and also offer free consultations.

If you live in the West Michigan area and are considering divorce or you have questions regarding your current custody arrangement or your child support payments, please contact us to make an appointment.

The Michigan Court Rules allow a family law judge to delegate his/her authority to a referee for recommendations regarding custody, parenting time and child support disputes. The referee essentially has the same authority as a judge to hear evidence and make a ruling on but the ruling is not final. . . it is merely a recommendation. Usually, either party has 21 days to object to the recommendation (some counties such as Macomb will reduce the objection period to 7 days in cases where the recommendation is made the same day as the hearing); if no one objects, the recommendation is ultimately signed by the judge and becomes the order of the court. Thereafter, you can only challenge the ruling if you encounter a substantial change in circumstances.

It is important to note that the referee hearing is only a preliminary step in the process. While judges do give some level of deference to the referee recommendations, the judge has an obligation to hear all of the evidence related to a custody, parenting time or child support dispute if one of the parties objects to the referee recommendation. At the referee hearing, you may submit documentary evidence to support your position but other than the parties, there will not usually be testimony (a full scale trial type investigation can be ordered by the judge but is not the usual procedure). The referee's function is to try and make a recommendation that best fits the situation at hand so as to bring the matter to resolution and avoid protracted litigation. However, if you do not like the recommendation, you may file your objection and then the matter will be set for a hearing by the judge.

I have frequently objected to referee recommendations because my client felt that the referee missed an important fact (or facts). As stated, the referee hearing is not usually a full trial so once your matter is scheduled for a full evidentiary hearing before the judge, you will be expected to come forward with all of your evidence (i.e. witnesses, documents, etc.). So, if you are not happy with a referee recommendation, all is not lost. You will have your day in court and it is very possible to convince a judge that the referee's recommendation was not in the best interests of the children.

I do often get phone calls or even referrals from people after their referee hearing. People will sometimes attend the referee hearing without an attorney which I believe is a mistake. Referees (and judges for that matter) do not always respond to a lay person's argument and it is easy for a lay person to become intimidated by the process. Many times people will tell me they did not get a chance to make all of their points because the referee cut them off. So, I feel strongly that if you do have a custody, parenting time or child support dispute, that you should contact me for a free consultation and ensure that you and your children's rights are being protected.

Some people decide not to file for divorce because it's too expensive to go through the process. It is important to remember that the actual expense of filing for divorce is only part of the discussion a person should have with an attorney. I am always glad to discuss these sensitive financial issues in a free consultation.

Remember that knowledge is power. Many clients who are afraid to move forward because they're afraid they can't afford to live separately after divorce have no idea as to what their financial situation is. So, you should take steps to get a hold of financial statements, pay stubs, 401K statements, credit card bills, utility bills, cell phone bills, etc. If your spouse refuses to provide that information to you, then it is likely he/she is hiding something from you or he/she is trying to control you. Most people don't realize that financial abuse is a recognized form of abuse that a counselor will address in therapy.

If you cannot gain access to your financial information, I have many methods of obtaining such information once the divorce is filed. I can send subpoenas, discovery requests, etc. and I have many other suggestions for clients that I will often discuss during free consultations. Nevertheless, do not allow your spouses refusal to provide you with information prevent you or delay you in filing for divorce if that is the decision you have made. In fact, the longer you let such financial infidelity go on, the worse things get.

The next consideration is the actual payment of attorney's fees. I will work with clients on payment plans when necessary but keep in mind that you are entitled to use marital money to pay for an attorney or you may use a credit card. In addition, Michigan law (i.e. MCR 3.206) allows the non-earning spouse to request payment of attorney's fees by the earning spouse. Be cautious however. . . even if a judge orders the other party to pay some of your attorney's fees, you are likely to incur additional fees. But, many people have no idea that there is actually legal precedent to help them pay for attorney's fees. . . so do not let your spouse bully you into thinking you are stuck!

I am glad to discuss these financial matters with potential clients in a free consultation and further, once you hire me, we will go over your entire financial picture so that we can collectively make decisions and plan for the next phase of your life following your divorce.

The Michigan Child Support Guidelines were modified in 2008 in order to create a more graduated decrease in child support as the payor's parenting time increased. Prior to 2008, there was essentially a cliff where if the payor reached 128 overnights, the child support dropped dramatically. This tainted many divorce and custody negotiations because the negotiations centered on money and not what was in the best interests of the minor children. So, the new formula took care of that. Unfortunately however, the guidelines do not tell us exactly what the child support is used for.

According to MCL 552.602 "support" is defined as "the payment of money for a child or a spouse ordered by the circuit court, whether the order is embodied in an interim, temporary, permanent, or modified order or judgment. Support may include payment of the expenses of medical, dental, and other health care, child care expenses, and educational expenses". In addition, generally speaking, expenses like clothing, food, haircuts, shelter (i.e. mortgage/rent, utilities, etc.) etc. are intended to be covered by child support. Also, there are provisions in every child support order to account for uncovered or extraordinary medical bills and each party pays his/her percentage of such expenses (i.e. braces, co-pays, deductibles, etc.).

Unfortunately, Michigan law doesn't specifically tell us whether expenses for extra-curricular activities like sports, dance, clubs, etc. are covered by child support. For that reason, many divorce judgments will include a provision that defines how the parties will pay for extra-curricular activities particularly if the children are involved in such activities at the time of the divorce. These costs may be split in some fashion or born by one party. If there is no provision in the judgment and the custodial parent can't afford to sign a child up for a certain activity (i.e. the child support is not enough), then he/she would have to get an agreement with the other parent to split the cost. Also, since most parents have joint legal custody, both parents must agree that the activity is appropriate for the child.

Even when there is no specific provision in the judgment of divorce for items beyond child support like sports, common sense should prevail. In other words, keep the focus on what is best for your children. If you are paying child support and your ex-spouse can't quite afford to pay for an activity, your kids will certainly appreciate you helping out. When asked by a male client if he should pay for his teenager daughter's clothes even though he pays child support, I told him "take your daughter shopping. . . that's what teenage girls like to do". Again, use common sense. Yes, we all have limits but just be reasonable and keep the best interests of your children in mind. If you do that, you will make good choices.

Lately, it seems like I have many clients who are trying to settle their divorce issues directly with their husband our wife in order to get the case over and ultimately, to save money. I certainly understand the desire to keep cost down in a divorce. But, you have to make sure you're not rushing your own thought process because you might regret your decision later. I always tell my clients during the divorce, a client who says "I just want this over with" usually makes a bad decision. Take a deep breath and step back for a moment. At a minimum, a divorce with children is going to take 6 months so there's no real rush.

The issues that husbands and wives usually try to settle between themselves are custody, parenting time and property issues. Whether you and your spouse can effectively work out your differences without your lawyers is a matter of dynamics. Certainly, if there's any history of abuse, then I highly recommend that you do not engage in direct negotiation with your spouse. The same would be true when there are serious trust issues particularly if there has been financial manipulation or infidelity/cheating.

Nevertheless, if you and your husband or wife can talk rationally, it is certainly worth the two of you trying to talk things out. If you have children, even after you're divorced, you're going to have to communicate anyway so being civil during the divorce process is a good starting point for your "post divorce" life. However, if your husband or wife is simply being unreasonable and making demands that you know you will never agree to, then leave the negotiations to your lawyer. You should advise your lawyer as to any agreements that were made (hopefully your husband or wife won't renege. . . that happens A LOT!) so that they can be reduced to writing and/or incorporated into a judgment of divorce.

Finally, with respect to how cost affects divorce negotiations, I tell all my clients that it is certainly not worth spending $2,000 to fight over $200. . . but, you cannot put a price tag on "peace of mind". You must, with the help of your attorney during the divorce process, figure out how far you are willing to compromise on custody, parenting time or property division so as to achieve a fair result and peace of mind. If you give up too much in the way of custody, parenting time or property, you are likely to regret it later.

The problem with directly

Before the housing market crashed in 2008, it was very easy to deal with the marital home in a divorce. Usually, the party who earned more had a desire to keep the home but he/she had to buy out the other spouse's interest in the equity. Then, he/she would have to refinance the house to take the other spouse's name off the mortgage. We would typically give the spouse taking the home 30-60 days to refinance the mortgage after the divorce was final. When the market tanked, that all changed.

Now, many, if not most homes are upside down meaning the divorcing parties owe more than the house is worth. It is now not uncommon to allow the spouse who is taking the home to have 1 to 2 years to refinance. In addition, I have had many cases where the parties agree during or before the divorce to allow the home to go into foreclosure. Obviously, a foreclosure will damage your credit so you really need to make sure that you believe foreclosure is your best option. Short sales, deeds in lieu of foreclosure and other options should also be discussed with your divorce attorney. During the divorce, I will often consult with a realtor to get a better idea of the market my client's home is located in so we can determine the best option. Obviously, there are many other property considerations to take into account and you will want to consult your divorce attorney.

If my client is the party not taking the home and we are going to allow the other party a significant period of time to refinance after the divorce, then I will include many protective provisions in the divorce judgment in case the other party defaults on the mortgage. Again, you should consult with a divorce attorney and I would be glad to talk to you and provide a free consultation.

Shortly after I posted a recent blog about "No Fault Divorce", I received a question while I was on the radio (690 A.M. with Bob and Rob Allison's 'Ask Your Neighbor' program. . .Fridays at 9 a.m.) talking about No Fault Divorce issues. I was asked about the phrase "Irreconcilable Differences". That is a phrase we hear frequently in the media when Hollywood couples are divorcing. Keep in mind, those divorces are typically in California where the law regarding pleading requirements is different.

In Michigan, among other things, the typical divorce complaint will state 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". In fact, there is a specific law or statute that prevents parties from stating specific reasons for fault in the divorce complaint. The reason behind this prohibition is to try and encourage parties to resolve their differences with decorum particularly when there are children involved. The divorce process is not designed to embarrass one party or the other. If you are seeking revenge against your spouse, you are likely to be disappointed with the end result.

As I have said before, I will tell you "how it is". . . I will not give you false hope that you're going to punish your spouse for all of his/her misdeeds. On the other hand, if your spouse is being unreasonable, then aggressive strategies may be necessary to "motivate" him/her to reach a proper resolution.

I receive calls all the time from people who want to know how much a "simple divorce" will cost. Some of those people reveal that they have purchased on line divorce kits or they went to the court house and began filling out the forms on their own. In today's economy, people are always looking for ways to save money. If you have a short term marriage, have little or no joint property, you may feel that you can pursue a quick, inexpensive and simple divorce. My experience tells me that there are certainly situations where people can finalize a divorce on their own. However, if you have ANY doubts in your mind, you should consider hiring an attorney. As I have said in other blogs, it is hard to put a price tag on peace of mind.

The best example I have of a "simple divorce" gone bad is a recent client who hired me after her "simple divorce" was finalized a couple of years ago. Her husband was awarded the marital home but it was in both parties' names. .. he stopped paying the mortgage but there was not any protective language in the divorce judgment. So, she hired me to take her ex-husband to court and fortunately, the judge ruled in my client's favor so that we put several protective measures in place. . . some of the damage was already done so this client was a bit lucky. Nevertheless, her "simple divorce" ended up costing her a substantial amount of money in attorney's fees plus damage to her credit, sleepless nights, etc. . . if only she had hired an attorney from the outset!

I must also say that I don't believe any divorce with children can be classified as simple. That doesn't mean all divorces with children are complicated. However, there are certain steps that must be followed (i.e. Friend of the Court referral, calculate child support, put appropriate custody and parenting time language in the judgment, etc.) even when the parties agree on most or all custody issues.

Please call me for a free consultation before you embark upon your "simple divorce" and make sure you're not leaving yourself open to sleepless nights as a result of an oversight.

Most people going through divorce have heard the phrase "No Fault Divorce". No fault divorce means that the courts do not care whether someone "caused" the divorce. . . if a husband or wife wants a divorce, he/she will be granted the divorce whether the other spouse wants it or not. It does not matter if someone caused the divorce.

Still, the question of fault almost always comes up. The most common causes of divorce are financial mismanagement/dishonesty and infidelity. . . other causes include drug abuse, alcoholism, verbal or physical abuse and other forms of psychological abuse. If you are a victim of any of these forms of fault, you should discuss the situation with your attorney to determine what options are available to you to protect your interests (financial, physical/mental well-being) during the divorce process (i.e. exclusive use of the marital home, ex-parte orders to preserve marital finances and status quo, etc.).

The other question many people ask is whether they will gain an advantage if the other spouse is at fault. This is a complex question. As stated, courts do not care who is at fault. But, if there is fault, you will have to decide how to pursue it or how to defend it. This can be very costly. You will have to undertake a cost/benefit analysis with your lawyer. I always put all options on the table for my clients and that helps them decide.

For example, if you do not have a lot of assets, why spend $1,000's of dollars litigating over who is at fault? However, if there are significant property issues, then a slight advantage (if you establish the other party is at fault) can be financially beneficial in the form of a larger split of the assets or even by receiving a larger amount or term of spousal support.

Fault can also help the victim if there are significant custody issues. However, remember, there are 12 Child Custody Factors. . . so, it's possible the fault you establish will only gain you an advantage on one or two of the factors. Great care should be taken to determine whether litigating fault is going to be worthwhile. The more you fight over such issues, the higher the cost of your divorce. Nevertheless, in the right case, I do not shy away from pressing these issues for my client. . . it is impossible to put a price tag on peach of mind that you attained the right custody and parenting time situation since you are going to have to live with the arrangement for many years to come.

The vast majority of cases do not warrant litigating fault. However, for your own peace of mind, you should discuss these issues with your attorney. . even if you are the one who created the fault, you want to fully disclose the issues to your attorney so there are no surprises. Please contact me for a free consultation to discuss these very important issues.

If you are the payor or the person paying child support (remember, in today's world, it's not always the husband that pays. . .but that's a discussion for another blog post) pursuant to a custody order contained in a divorce judgment or custody agreement, you should be aware of your rights. Most cases opt to utilize Friend of the Court services so that the payments go directly from the payor's pay check, through the Michigan Disbursement Office and deposited into the payee's bank account. Friend of the Court can also assist parties when they have parenting time disputes but whether to pursue such a matter on your own is something you must think seriously about because a family law attorney (i.e. me!) will follow proper procedure and assist you in putting your best foot forward. In addition, by law, you get a free review of child support every 36 months and you don't have to use a lawyer.

So, one of the options you should consider if you're falling behind in your child support is to seek a modification of your child support in hopes that the payment will go down. In my experience as a family law attorney, it is much better for the payor who is falling behind in child support to be proactive. If you can't afford an attorney, you can still use Friend of the Court forms to file a motion for a reduction. But, remember, there is no guarantee you will prevail and an attorney will have the expertise to assist you in formulating a game plan. Most judges understand that people do fall on hard times so even if you can't get child support reduced, an attorney can effectively advocate an appropriate arrangement so you can pay back the arrearage.

When pursuing an increase or reduction in your child support, the court will look at 3 primary factors: over night parenting time and the income of each of the parties. Many individuals pursue child support modifications without using an attorney. Sometimes it works but often it fails. The reason is, an attorney will advocate on your behalf. For example, if you're the recipient of child support and your ex-spouse is not exercising his/her parenting time, your attorney will make appropriate arguments, present evidence, etc. to support the utilization of a lower number of over nights which may increase the child support you receive.

Another issue I see frequently is "under the table" income. People who work in restaurants, work construction, and the like often receive cash which is hard to trace. This will make the Friend of the Court's determination difficult so an attorney will be able to employ strategies to track income that someone is trying to hide.

One final thought and perhaps the most important issue is that you must decide whether to pursue a change at all. An attorney can run the child support guidelines using some reasonable assumptions and determine if your case meets the minimum standard for modification in your favor; otherwise, you run the risk of the modification backfiring (i.e. you wanted your support payment lowered but it actually goes up). You can find the guidelines for child support modification here: http://courts.michigan.gov/scao/resources/publications/pamphlets/focb/PSA21-Text.pdf

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].

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.