For many couples, the bulk of their assets are located in retirement accounts. The division of these assets, and the tax consequences associated with such, is a significant concern. Generally, you are entitled to half of the marital portion of your spouse’s retirement accounts and vice versa.

The actual division of the accounts depends on the type of account. For example, qualified plans require a QDRO (Qualified Domestic Relations Order) to properly split the account and avoid tax consequences. Additionally, an IRA division needs to be treated as a transfer “incident to divorce” and should be completed within one year of the divorce agreement, in order to avoid the early withdrawal penalty.

Another important, and often overlooked, change that needs to be made, is on your beneficiary designations. You will want to make sure that your former spouse is no longer listed as a beneficiary on any of your retirement accounts, or any other asset that designates a beneficiary. Regardless of your divorce judgment or Will, a company will generally follow the beneficiary designation. Although many individuals assume this is accomplished through the Judgment of Divorce, it is not.

As long as an individual was married at least 10 years, was divorced, and is currently single, he or she can collect Social Security benefits on an ex-spouse’s earning record as if they were still married. This applies even if the former spouse has remarried.

An additional benefit for spouses born on or before January 1, 1954, is that a divorced individual can restrict their claim to spousal benefits and allow their own retirement benefit to continue to grow by 8% per year, until they attain the age of 70. Unfortunately, individuals born on or after January 2, 1954, will be applying for all available benefits. This means that they will receive the higher of the spousal benefit, or their own benefit, but do not have the option to restrict their claim.

For more information on how divorce affects retirement decisions, contact the attorneys at SMDA, P.C. at (586) 264-3756.

When you are considering filing for divorce, it is helpful to understand your financial situation  – both individually and as a couple. You will want to have a general idea of the marital assets and debts. This will allow you to consider the amount of the assets that are subject to division, and how much debt you may be liable for. You will also want to take note of which assets you believe are premarital, and thus, are not subject to division.

In addition, it is helpful to have a general understanding of your income and your spouse’s income. This will help you evaluate whether spousal support is an option, and will be helpful in determining child support.

By understanding the assets and incomes, you are in a better position to negotiate a favorable resolution of your case. If you do not have access to the marital financial information, it can be obtained by your attorney through the discovery process. For more information on preparing for a divorce, contact the attorneys at SMDA, P.C. at (586) 264-3756.

Pending the entry of a temporary order, the court may enter an ex-parte order if the court is satisfied by specific facts set forth in an affidavit or verified pleading that irreparable injury, loss, or damage will result from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be issued. MCR 3.207

In Rinvelt v. Rinvelt, 190 Mich App 372, 380; 475 NW2d 478, 482 (1991), the Court of Appeals held that prenuptial agreements governing the division of property in the event of divorce are enforceable if the following criteria is met:

1.) Was the agreement obtained through fraud, duress or mistake, or misrepresentation or nondisclosure of material fact?

2.) Was the agreement unconscionable when executed?

Under the Child Custody Act, proper cause or a change in circumstances means one or more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.

To establish proper cause, necessary to revisit a child custody order, not just any fact relevant to the twelve statutory best interest factors will constitute sufficient cause; rather, the grounds presented must be legally sufficient (i.e. they must be of a magnitude to have a significant effect on the child’s well-being to the extent that revisiting the custody order would be proper). MCLA 722.23 (a-l), 722.27(1)(c).

The court in Killingbeck v. Killingbeck, 269 Mich. App. 132 (2005), stated that not just any change will suffice to establish a change in circumstances; the evidence must demonstrate something more than the normal life changes that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.

Where a change of custody is sought, the initial inquiry is whether there is an established custodial environment.

An established custodial environment (ECE)  is an environment of “significant duration in which a parent provides care, discipline, love, guidance, and attention that is appropriate to the age and individual needs of the child. It is both a physical and a psychological environment that fosters a relationship between custodian and child and is marked by security, stability, and performance.” Berger v. Berger, 277 Mich. App 700 (2008).

Determining which party has the ECE is a question of fact. The court may find that an ECE exists with both parents.

Child support is based upon a formula that takes into consideration the incomes of both parties, the amount of overnights the payor has with the child, health care costs, child care costs, and tax exemptions.

Child support is generally paid through the Friend of the Court, which will keep track of, and enforce, child support obligations.

For more information on child support, contact the attorneys at SMDA, P.C.

There are two types of custody that will be determined in a custody or divorce case.

Legal custody involves major decisions affecting the child, including, but not limited to schooling, healthcare, and religion.  Physical custody refers to the time spent with each parent.

Custody differs depending on the situation. It is typical for legal custody for be joint. Physical custody can be joint (roughly half of the time is spent with the mother and half of the time with the father) or sole (one parent has the majority of the time with the children). If one party has sole physical custody, then the other parent will generally have a set parenting time plan.

There are several case codes that you should be familiar with when filing a family law case. The court will require different standards of proof and different procedures, depending on which type of family case is filed.

DP – A DP case is a case to establish paternity. A paternity case can be filed by either party, who is looking to establish paternity, either to initiate child support or parenting time. A paternity case is not necessary if a father is on the birth certificate, or has signed an affidavit of parentage.

DC – A DC case is filed by unmarried parents, who are looking to establish custody and/or parenting time.