Articles Posted in Family Law/Divorce FAQs

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.

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?

Answers to frequently asked questions regarding filing for divorce:

1.) Do I need an attorney to file for divorce?

Answer: No. However, it is in your best interest to consult with an attorney when filing for divorce. Often times we hear from clients who have initiated the process themselves, and their case ends up getting dismissed. If you want to ensure that all of the documents are properly filed with the court, and that your divorce is wrapped up as quickly and seamlessly as possible, it is best to hire an attorney.

If you are a party to a divorce case in Oakland County, and you have minor children, you will receive notice of your Early Intervention Conference (EIC).

The EIC is the first hearing held on divorce cases involving minor children. The EIC is held at the Friend of the Court 56 days after the filing of the Complaint. The case is heard by the Referee assigned to the case. Both parties and attorneys must attend.

The EIC provides the Court with a summary of the case and status. If needed, your Referee may refer the matter of child support, custody, and/or parenting time for investigation and recommendation.

On June 26, 2015, the United States Supreme Court held that same sex couples have a fundamental right to marry as guaranteed by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Obergefell v. Hodges, 135 S. Ct. 2584; 192 L. Ed. 2d 609 (2015).

So, what does this mean for same-sex couples, who would like to divorce? Due to the fact that same-sex marriage has only been an option since June 2015, same sex divorces will differ from heterosexual divorces. One of the factors that is considered in terms of spousal support and property division, is the length of the marriage. Thus, a same-sex couple that has had a civil union or has been a couple for many years, will still have a fairly short length of marriage, which in turn, results in less support.

Because the issue of same-sex divorces is just beginning, the court may be persuaded to take a closer look at these issues, and consider arguments regarding the length of the relationship, rather than the length of the marriage. If you are considering your options for same-sex divorce, please contact the attorneys of Serafini, Michalowski, Derkacz & Associates, P.C. at (586) 264-3756.

Pursuant to MCR 3.206(C)(2), there are two independent bases for awarding attorney fees and expenses.

1.) The first is based upon a party’s need to prosecute or defend a claim and the other party has the ability to pay or contribute, and 2.) The second is based on a party’s behavior without reference to need or the ability to pay.

The court will consider the income of both parties, as well as, the overall distribution of property, and whether the property settlement adequately provides for the spouse in need.

1.) Are you sure? Make sure you have carefully thought it out and that divorce is the right path for you.
2.) Do your research. Ask your attorney about the laws, time requirements, and costs associated with a divorce. The more you understand the process and the costs associated with a divorce, the better you will feel throughout the process.
3.) Set your goals. Have an idea of what you are looking to accomplish both personally and financially. The process is a give and take, so be realistic about your expectations.
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If you are contemplating whether an annulment is in your best interest, please carefully review the following advantages and disadvantages :

The following are advantages of an annulment proceeding:

• Starting a new marriage as if it were a first marriage may have a positive psychological impact.

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.)