Articles Posted in Family Law/Divorce FAQs

The grounds for annulment in Michigan are as follows:

1.) Prior spouse of a party: a marriage is void if it is performed while one of the parties is currently married to someone else.

2.) Relationships of consanguinity and affinity: marriages between parties related within certain degrees of consanguinity or affinity are prohibited (i.e. mother and son, brother and sister, etc.)

Divorce creates profound stress and emotion, and often precipitates other changes in your life. The outcome of your case can affect you and your family for many years to come. For these reasons, it is essential to find attorneys that adequately represent your interests and make the divorce process as smooth as possible. Unlike other firms that generate frivolous charges, and drag out the court process for their own financial benefit, Serafini, Michalowski, Derkacz & Associates focuses on the most cost-effective approach, so that this difficult time does not cause unnecessary financial stress.

We offer a free consultation to provide you with straightforward information, so that you have peace of mind during this difficult time. We make sure you are knowledgeable about the entire divorce process, as well as all of your potential options. Moreover, we continually keep you updated throughout your case.

To initiate the divorce proceedings, we will file a Complaint for Divorce in the county in which you reside.
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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.

An annulment proceeding is instituted to obtain a ruling that a valid marriage never took place, because of a defect existing when the parties were married. A divorce proceeding is used to terminate a valid marriage, for reasons that occurred after the marriage took place. In Michigan, the statutory grounds for divorce is that there has been a breakdown in the marital relationship, to the extent that the objects of matrimony have been destroyed and there is no reasonable likelihood that the marriage can be preserved.

When your relationship has reached the point where divorce is imminent, you may realize that you need a divorce consultation, but may not realize which questions to ask or where to begin. Below is a list of questions that may help you more fully understand the divorce process and what your rights are:

1.) What is the time frame that the case would be resolved? (this will depend on how disputed your case is)

2.) What is the process?

When divorcing your spouse, you need to understand the total amount of assets, including real estate, investment accounts, retirement accounts, etc. You also need to understand whether you are likely to receive spousal support. All of these factors will help you determine how your are going to support yourself after all of the assets are divided, and you are living on your own.

Many individuals that have been relying on their spouse, want to keep the marital property, despite the fact that their income is minimal. In order to determine whether or not you can remain in the marital home, you need to first consider the above, and second, speak with a loan officer, and determine if you would be eligible to refinance the home.

Although you may be very attached to the Property, you need to ensure that you have the financial ability to remain in the home. If not, it is likely your best option to sell the home, split the equity with your spouse, and find a new property where you can start fresh.

After you’ve negotiated the terms of your divorce judgment, and you are officially divorced, you will still have a lot of loose ends to tie up. One often overlooked issue that needs to be addressed, is updating your estate plan.

Generally, an estate plan will include a trust or will, a durable power of attorney, a medical power of attorney, and a deed that avoids probate. The documents that consist of your estate plan, will vary based upon your needs. However, if you have minor children, most times your estate plan will include a trust. A trust allows for more in depth planning, and staggered distributions, so that your child does not receive a windfall at the age of eighteen (18). A trust also avoids the hassles of Probate.

Most likely, if you already had an estate plan while you were married, your spouse is in the first fiduciary position for each document. It is important to change the documents, to replace your spouse with another individual.

A legal separation and a divorce are two distinct court cases and two distinct marital statuses. 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.

The majority of couples that decide to file for a legal separation, versus a divorce, do so for religious or medical reasons. One advantage of a legal separation is that a spouse may be able to maintain health insurance through the other spouse’s employer. 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. One of the other advantages of a separation is that you are not considered divorced for religious purposes.

However, some disadvantages of a legal separation are the costs. 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. Another disadvantage of a separation, is that you cannot re-marry, as you are still considered legally married. Additionally, when an action for separate maintenance is filed, the defendant has the option of counter-claiming for divorce. If the defendant counterclaims for divorce, the case will be converted to a divorce case. Thus, if you and your spouse do not feel the same way about a legal separation, you are better off filing for a divorce.

Many people contact our office and ask, “how do I prepare for a divorce?” If you are contemplating filing for divorce, there are a few things you can do to put yourself in the most favorable position.

1.) Prepare a financial statement. You should know the extent of the marital assets. Not only should you create a list of your individual assets, but also your spouses’s individual assets, and all joint assets. You should also know the approximate balances in each account. Start keeping track of the account statements, so that you know if your spouse has made any significant transfers. In addition, you should know all of the debt in your name, your spouses’s name, and in both of your names. If any assets have a lien, know the amount of the lien and who the lienholder is.

2.) Create a budget. You should know the current incomes and expenses of your household. You will want to figure out if you would be able to keep your home, or the amount of other comparable homes in the area, if you plan on moving out of the marital home. If you have concerns about your ability to keep your home, check out our spousal support blog, to see if you would be entitled to support.

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.