Articles Posted in Family Law/Divorce FAQs

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.

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.