Pros & Cons of a Prenup Agreement in Michigan

Prenuptial agreements are frequently thought of as ironclad tools for asset protection.  What are the pros and cons of a prenup agreement? The same standards that apply to last will apply to prenuptial agreements. The last will does not foretell death. It is an effort to get prepared for the possibility of death.

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The idea of conserving or protecting separate property and the rise in the value of the separate property in the event of a divorce are the benefits of a prenup. The absence of ironclad guarantees in Michigan’s prenup is a downside. If the prenuptial agreement is not equitable, the judge in Michigan has the authority to intervene with the subject of the prenuptial agreement.

Prenuptial agreements have been more commonplace in recent years. In a 2018 survey by the American Academy of Matrimonial Lawyers, 62% of lawyers questioned indicated they had observed an increase in the number of clients seeking prenuptial agreements during the previous three years. 

Couples who wait longer to get married and amass more cash and assets prior to becoming engaged may be somewhat to blame for this trend. Given that many millennials getting married now have divorced parents, the prevalence of divorce in earlier generations may also be a factor in the rise in prenuptial agreements.

 

What Is a Prenuptial Agreement?

A prenuptial agreement, also known as an “antenuptial agreement” in Michigan, is a document that enables future spouses to stipulate how particular issues, such as property division, and alimony, will be resolved in the event of a divorce.

Antenuptial agreements are legally binding in the State of Michigan if they are made in writing and signed by the person who will be held responsible for the agreement, contract, or promise. This is also true of notes or memoranda that include the same information. To put it simply, this implies a court would consider an oral agreement void.

This agreement has a particular duty of disclosure more stringent than the standard negotiated agreement’s duty of disclosure, and it must be signed before being married. Before the agreement is signed, all parties have a duty to reveal their assets; if they fail to do so, the agreement may be void.

The agreement must also be “fair,” according to Michigan courts, and the facts and situation must not have altered between the time it was signed and the time it is being enforced. Any change in circumstances must have been unanticipated and not reasonably foreseeable by the parties prior to or at the time the agreement was made in order for it to be enforced at a later time.

Escalator clauses, which provide a party more money, property, etc. the longer the marriage, are sometimes included in prenuptial agreements. It is also possible to stipulate that the agreement will no longer be binding once a specified number of years have passed after the beginning of the marriage.

A prenuptial agreement in Michigan may cover any topic that is not illegal and doesn’t encourage divorce.

Any of the following can be covered by prenuptial agreements:

[ a ]  Property, commercial interests, and financial accounts to be divided

[ b ]  If the couple will share their retirement accounts equally between the two spouses

[ c ]  Each spouse’s capacity to control the household’s resources during the marriage

[ d ]  The amount and length of alimony payments, as well as whether one spouse will pay the other.

[ e ]  How to share the proceeds of life insurance

[ f  ]  Child support or child inheritance from previous partnerships

[ g ]  What occurs if a partner passes away during a marriage, and

[ h ]  Whether the provisions of the agreement require one or both spouses to execute a will.

Under Michigan, child support or custody cannot ever be decided upon in a prenuptial agreement. Courts won’t allow spouses to agree on a child support sum in advance since the court bases child support on the children’s needs and their parent’s financial capacity. Judges also make custody decisions based on each child’s best interests at the moment of a parent’s separation, never beforehand. Only at the moment of separation, and with the consent of the court, can parents decide on child custody and child support.

 

What Are the Pros of Prenuptial Agreements?

A prenuptial agreement tries to assist future spouses in planning for the future, protecting their assets, and outlining their finances in detail before getting married. To ensure the prenuptial agreement is mutually beneficial and does not disproportionately benefit one spouse over the other, both parties must have their own legal counsel when negotiating it.

Let’s mention very specific pros of antenuptial or prenuptial agreements.

 

Wealth Protection

The ability to preserve your wealth with your prospective spouse is a prenuptial agreement’s potential biggest advantage. Contrary to popular belief, protection does not include guarding your assets against one another. A prenuptial agreement enables you and your future spouse to collaborate in protecting both the wealth you bring to the marriage as individuals and the wealth you will accumulate together.

Due to the fact that it necessitates complete and frank disclosure from both parties regarding the assets and debts they will be bringing to the marriage, prenuptial agreements can accomplish this dual wealth protection. Additionally, in order to create a prenuptial agreement, the couple must talk about their financial aspirations for these assets as well as any additional assets they might acquire together in the future.

 

Smoothen Compliance with Future Legal Processes

A prenup is used in situations other than separation and divorce. Prenuptial agreements can ease the divorce process and reduce stress, but they can also make estate planning and end-of-life planning simpler. In comparison to a standard will, a prenuptial agreement offers you greater flexibility when it comes to leaving an inheritance for your children.

A will doesn’t always provide people the flexibility they’d like when deciding who they want to leave their property to because many jurisdictions, including Colorado, have extremely strict inheritance laws. However, the couple can decide together and, in some ways, mitigate the state’s inheritance laws through a prenuptial agreement. This is just one example of how a prenuptial agreement might make future legal challenges more understandable and manageable.

 

What Are the Cons of Prenuptial Agreements?

A prenuptial contract does not cover everything. With this kind of arrangement, you cannot control every facet of marriage. Before establishing the prenuptial agreement, you should be aware of these limitations.

Here are some cons to the use of prenuptial agreements.

 

Provisions of the Agreement Are Not Ironclad

Prenuptial agreements are not actually harmful, thus this is more of a misconception. Prenuptial agreements have sadly earned a poor reputation. Many people mistakenly think they lack romance and fundamentally lack faith in the relationship. Making a legal contract may not be the most romantic thing you can do, but it does not show mistrust or a lack of confidence the relationship will endure.

If the situation has changed in a way that makes it unfair to enforce the agreement, judges may decide to nullify it. The fact one spouse receives a significantly larger portion of the marital estate under the agreement does not automatically render it unenforceable. Even if the prenuptial agreement forbids it, the court may order the other spouse to pay alimony if, for instance, one spouse lost their ability to work due to a disability that occurred during the marriage. For a judge to declare an agreement unenforceable owing to unfairness, there typically has to be an extreme case like that.

 

The Existence of the Agreement Implies Distrust

People believe that mentioning the drafting of a last will and testament is a foreboding of death. Some see prenup as a foretelling of divorce. A fairytale ending and proposals frequently conjure up ideas of candlelit meals, holding hands, and strolls in the moonlight. Bringing up the possibility of a future divorce is the surest way to ruin that mood. Marriage is a partnership extending beyond romance and touches on serious matters like property and finances, but for some couples, talking about these topics could overshadow this delightful time.

Don’t wait until the wedding invitations have been sent out to bring up a prenup; instead, carefully evaluate the best time and place to bring it up. Not only is that unfair to your future spouse, but in many states, if you coerce your fiancé into signing a prenuptial agreement right before the wedding, a court might declare the contract unlawful because your fiancé didn’t have enough time to thoroughly study the contents.

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How Unmarried Moms Can Get Full Custody in Michigan

When a couple is married in Michigan, both of the spouses are recognized as the child’s legal parents. Both same-sex and opposite-sex relationships can benefit from this. How is this going to work with unmarried couples? Determining parental rights, such as child custody, can be quite challenging, but more so for the biological father than for the mother.

How unmarried moms can get full custody is not really an appropriate question. In a non-marital partnership, the mother is already presumed to have full custody in Michigan. With married couples, the situation isn’t truly the same. When two people get married, it is assumed both parents will have custody.

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A motion for custody may need to be made by the father in a non-marital partnership. In the best-case scenario, the father may have joint legal custody. In a non-marital union, it is assumed that the child will stay with the mother for the child’s stability and protection unless the mother is deemed unfit. Until proven otherwise, the unmarried mother is granted complete custody.

 

Why Is the Issue of Custody Important for Unmarried Moms?

Did you know that in the United States in 2021, there were an additional 15.62 million families with single moms? This translates to a total of 24 million children living in single-parent families. In America, this sum, which has been rising for half a century, affects nearly one in three children. Numerous long-term demographic trends, such as postponing marriage, declining marriage rates, rising divorce rates, and an increase in children born to single moms, have contributed to this rise.

According to information from the Michigan Department of Health and Human Services, a record high of over 43% of Michigan women who gave birth in 2015 were not married, up from 24% in 1989. Using 2015 Children Count data, it ranks Michigan’s 83 counties according to the percentage of births to unmarried moms.

The county with the greatest proportion is Lake County, which is situated on the western border of the state between Grand Rapids and Cadillac. Additionally, Lake County is among the poorest in the state.

In Lake County, 60% of pregnant women in 2015 were single.

The question of custody for unmarried moms is becoming important and relevant today with a growing population of single moms not only in Michigan but in the whole of the U.S. It can be a driver for a host of national and statewide social issues mostly affecting generations of children.

 

Are There Differences in Maternity-Paternity Rights Between Married and Unmarried Parents?

When a married couple in Michigan files for divorce, it is typical to assume that the parents will split physical custody while sharing legal custody of any children from the marriage. The child’s biological mother is assumed to have sole legal and physical custody in custody disputes involving unmarried parents.

In a relationship of two unmarried parents, clearly by default, the mother gets to be the custodial parent. The father however still needs to establish his status as a parent through legal and extra-legal means.

Unmarried fathers can voluntarily establish paternity with the mother’s consent by executing an Affidavit of Parentage at the hospital where the child is born or at a later time. If paternity is disputed, a father can legally prove parenthood through a procedure that often includes genetic testing to demonstrate a biological connection.

After establishing paternity, a father will need to take extralegal action to establish a new parenting arrangement. But keep in mind that if the mother of the child is married to another man, that man will already be assumed to be the child’s legal father, giving a biological father a very tough time establishing paternity and gaining parenting rights.

 

How Is Child Custody in an Unmarried Relationship?

If the parents are not married, the mother is assumed to have custody until the court renders a decision. In Michigan, unmarried mothers are assumed to have sole custody of their children, both legally and physically, unless the child’s father has been acknowledged by the courts. However, if paternity has been confirmed, the father of the child is entitled to make a custody claim in the same manner as if the parents were married.

The affidavit of parentage grants the mother primary custody of the child; the father is not awarded visitation privileges. To enforce his rights to custody and parenting time, the father must file a custody action with the court. An Order of Filiation, which was filed with the court, is a legal document governing child support, custody, and parenting time. A father needs this order or something similar to enforce his rights to custody and visitation.

There are some obvious benefits to the Affidavit of Parentage. The father’s signature verifies that he is the child’s father. By getting his name added to the birth certificate of the child, he can exercise his rights to custody and visitation.

Affidavits of Parentage should not be signed by fathers who are unsure of the child’s parentage because doing so waives the right to later request a paternity test to establish biological parentage. However, if a single man is positive he is the father, he should affix his signature to an Affidavit of Parentage either at the moment of the baby’s birth or at any later date. With the help of this document, a man can prove that he is the child’s biological father, and his name will be placed on the birth certificate. Additionally, custodial rights are established.

To summarize, this is what is in store for you in a custody case for unmarried parents:

[ a ]  Unmarried fathers have the right to submit a Notice of Intent to Claim Paternity before or following the birth of a child.

[ b ]  If the mother was married at the time of the child’s birth, unmarried fathers are not entitled to support or visitation (must mutually establish paternity first).

[ c ]  Fathers who are not married have the option of gaining physical custody of their children through adoption or court order.

[ d ]  Until the biological father receives a court order granting him custody rights, the unmarried mother is believed to have primary custody of the child.

A parent does not avoid having to pay child support if he decides not to sign an Affidavit of Parentage. A father cannot be made to provide support if he refuses to acknowledge paternity. The mother or the State of Michigan, however, may first bring a child support action. In order to establish paternity and request a child support determination, a mother may initiate her own legal case.

We have also covered this topic on unmarried parents in our article, “Who Has Custody of A Child If There Is No Court Order in Michigan?” in which we discussed child custody issues for unmarried couples as well as parental rights. 

In plain language, a biological father simply cannot take a child from the mother without obtaining a court order. The father has the option of paternity action or going for adoption.

 

How Can Unmarried Moms Get Full Custody?

The biological mother will initially receive primary custody in a disagreement over child custody between unmarried parents. In addition, the mother will continue to have primary custody while paternity litigation is ongoing, and the father won’t be allowed to have custody or visits during this period unless an affidavit of parentage is provided.

By default, the mother doesn’t have to fight for custody. The mother has sole custody, legally and physically.

The main challenge for the mother is when the father aggressively pursues custody or a third party challenges her parental rights.

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What You Should Expect After Hiring a Family Law Attorney in Michigan

There will be instances where spouses or parents abuse or disregard their marital and parental rights. Every time legal issues arise, you contact an attorney. What happened after you made retainer payments? After selecting a family law attorney, you should expect a professional.

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You might expect that your duties and legal difficulties will disappear overnight. That is not how it works. You may count on your attorney to offer you advice on how to communicate what has to be done. Expect your attorney to represent you in communications. Be prepared to pay for the communication and guidance. Your attorney is an expert. Expect to be treated with respect, and show the professional the same courtesy. If you are unable to maintain a professional relationship, be prepared for your attorney to quit.

You may be in a situation where you have not seen your kids for some time. Probably because you have a valid reason not to go visit them or you just decided they were not worth your effort at that time. Then you realize you need to see your kid and then find out you need an attorney to fix your mess.

Don’t expect your lawyer to walk into your life and your children to solve the mess you created. It doesn’t work that way. Every case is unique. Every case needs special attention. The court also sees it the same way. The court has a reputation for being slow. It takes purposeful incremental steps. It’s not really slow by intent but it is deliberate especially when the case involves children.

Your expectations after hiring your attorney should be realistic and pragmatic. If you have not seen your children because you were on Mars, you need to go and bring down your expectations back to Earth.

Here are five realistic and pragmatic expectations you should have after hiring a family law attorney.

 

Expectation No. 1: Steps Will Be Taken

Your attorney will take every effort to get you back on the right track. You and your lawyer are not going to sprint because a legal case is actually a marathon.

The initial consultation with a divorce lawyer typically lasts for an hour or so. The lawyer will enquire about the marriage and the circumstances throughout the meeting. This can include the duration of the relationship, your income and career history, any assets or obligations you both have, whether you have children together, and more. You might want to provide your lawyer with the following information:

[ a ]  An overview of the marriage’s history

[ b ]  Information on your family’s history, including your spouse and children

[ c ]  Your current circumstance

[ d ]  Your objectives and plans for the situation

[ e ]  What details do you want to learn from the consultation

You may alleviate a lot of your worries and concern by working with an accomplished divorce lawyer. An attorney can advise you on what is best for you and your kids. Before the divorce is finalized, they can assist you in filing motions, negotiate with opposing counsel to secure the best settlement possible, represent you at numerous hearings and conferences, and ensure that your rights are upheld.

Family law covers a variety of relationships in addition to the marriage relationship, which is a major focus. In some cases, they might act as advocates for grandparents asking for visitation rights with their grandkids. Paternity cases are also handled by family law professionals and can be filed by both men and women. Family law attorneys can assist with adoption for those who are not parents but would like to be. A family law attorney can go over choices including private adoption, agency adoption, adoption from foster care, adoption internationally, and more because there are so many in this field.

 

Expectation No. 2: Shuttling Back and Forth to Manage the Nuances of Your Case

Your attorney will try to get a grasp of your situation and understand the legal context of the case. Most cases involving family law involve concerns like divorce, child custody, support, parenting time, wills, trusts, and other related matters. Family law attorneys can assist you in managing all the significant choices you need to make, defending your legal rights, and advancing your interests in court cases and settlement talks.

When it comes to litigation, experience is unbeatable. Family law attorneys have argued divorce matters in court for a sizable portion of their careers. They have unequaled insight into opposing counsel’s tactics and judges’ reactions to certain arguments and pieces of evidence because of their enormous experience.

Even if you are the one who filed for divorce, there is a good probability that you are going through some pretty intense emotional upheaval as a result of the situation. When you have a family law attorney on your side, you have a specialist who can provide objective, factual, and experience-based counsel regarding your divorce.

An attorney can complete tasks faster than you could because of their knowledge and experience, familiarity with court rules and regulations, and access to numerous resources. Most certainly, a family law attorney with experience has appeared before judges in your area. They will be aware of the judge’s preferences and what is necessary to correctly file documents in the local court system in order to keep proceedings on schedule.

 

Expectation No. 3: A Lot of Communication and Advice

The crux of every lawyer-client relationship is communication. Communication is really what lawyers can give. It’s their stock-in-trade. Their communication, their time, and their time are their stock-in-trade.

If you are thinking about getting a divorce in Michigan, you might get advice from almost everyone. All of a sudden, opinions are shared by family, friends, coworkers, and neighbors. They open up to you about their worries, their terrifying tales, and their suggestions—often whether you want to hear them or not. However, it’s likely that the viewpoints and recommendations you receive hold half-truths or inaccuracies.

Your case should always be handled by your attorney with your best interests in mind. They will pay attention and offer frank, unvarnished opinions without passing judgment, which can be challenging for family and friends. Family law is complex and requires a certain level of expertise to understand. You must research hundreds of statutes, keep up with developments in the law and society, and be familiar with previous court decisions. Therefore, it’s simple to understand how someone could be deceived when the other side makes frightening statements.

And, this is where communication and legal advice truly proves their value. 

With good solid legal advice, you get ahead in your family law case. A skilled family law attorney can frequently assist in defusing tension rather than just resolving it. It’s possible that if you try to settle a dispute on your own, you’ll discover that you and the other party become more emotionally involved in the problem, escalating the argument and increasing the cost of hiring a lawyer to handle it.

Because their expertise and time are their stock-in-trade, expect to be billed frequently for their time and advice, whether it is via phone, Zoom, chat or live person-to-person meet-up. If you don’t want your legal cost to increase, don’t call them just to whine or for updated gossip about your ex.

 

Expectation No. 4: Expect Appropriate Respect from Your Attorney

When you call, you will get a return call. You will get proper reception from staff. A schedule for consultation or meeting will be arranged appropriately. Most highly effective and successful attorneys have very good office processes and staff. They deploy the latest technology to manage your case, and their most important asset is their ability to respectfully serve their clients who are experiencing the most stressful moments of their lives.

From the time they receive your email or your call, expect an appropriate response. The most successful ones even get to educate you about family through many resources they make available online. They employ technology to keep track of your case so lawyers assigned to your case are always kept abreast of the progression.

They may not always be able to respond to you on the same day but expect a response nonetheless. The most effective and highly successful family law firms are very busy because a lot of people know and trust them. They will always be preoccupied with active cases. Be patient. They always have a way via chat, email, or phone to get back to you. Just leave your contact information and a brief detail of your concern.

 

Expectation No. 5: Your Attorney, a Professional, Deserves Respect

The retainer you paid is not a license to be disrespectful. Your attorney knows you are probably in the worst place at the moment. They will understand if you’re anxious, depressed, angry, and confused. But you need to have boundaries because your attorney is there to help you navigate the legal process required to relieve you of your challenges. Your attorney simply cannot help you if you are emotionally incapable of grasping your situation and what is required to go forward.

Being a family lawyer does not come cheap and easy. A minimum of two years of undergraduate study (60 semester hours or 90 quarter hours) is required by the Michigan Board of Law Examiners before you may apply to law school. You must hold a bachelor’s degree before applying to law school at the majority of institutions with American Bar Association (ABA) accreditation. After completing the study, they need to acquire substantial experience in litigation to apply what they have learned in law school.

Divorce processes are frequently quite difficult and can elicit strong feelings among individuals who are involved. Therefore, having a support network by your side during this time is essential. Because of this, spouses are encouraged to bring a close family member with them to their session with a family lawyer. This person can be there for you to listen, inquire, and take notes about the discussion on your behalf.

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Does My Ex Have Rights if They Walked Out on Our Family in Michigan?

When there are children, a family consists of the parents or spouses and the children. Your front door just opened, and your ex walked out. You’re thinking, does my ex have rights if they walked out on our family? It might just be about family. It’s also possible that your ex is simply leaving you specifically. Many factors can cause someone to leave. You believe your ex is abandoning the family by leaving.

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It’s possible that your spouse is just avoiding you in order to keep the peace in the household. It’s possible your ex is not giving up parental rights. Of course, it’s possible your ex is simply giving up on one or more of the children rather than genuinely leaving the family. What will be the rights of an ex-spouse? The court will consider the family’s overall situation and context. It won’t be predicated on a single instance of a spouse leaving the home.

In most cases, leaving entails ending all involvement in the relationship. The most particular effects, however, are the financial element, the loss of connection, and jeopardizing of other marital concerns. 

This can encompass the breakup of a marriage’s business as well as the loss of companionship with the spouse or any children. While the other takes care of the home, one spouse may work. While the husband or wife is in school or earning less money, one person may work. Depending on when they leave home, different things have different effects on the relationship.

Emotional and legal issues are other factors. Usually, the divorce is not caused by the spouse’s departure. But in this situation, there is no dialogue or reaction at all. Emotional upheavals such as fury and despair are experienced by the person who was left behind. Legal action could include presenting the case to the judge and asking for custody or spousal support. A mortgage or business dealings when the couple runs a private or public firm might also enable the lone survivor to seek temporary or emergency financial support as a result of the abandonment.

 

Does Walking Out on Family a Basis for Divorce?

Because Michigan is a no-fault divorce state, there is no requirement that a person gives a reason for wanting a divorce. It does not imply however, fault cannot be taken into account in the distribution of assets or the payment of alimony. Before 1972, when Michigan passed a no-fault divorce law, a person seeking a divorce had to give a reason for doing so, such as adultery, physical abuse, or abandonment.

The judge could refuse the person’s request for a divorce if they failed to provide sufficient evidence to support their case. Some judges would flat-out refuse to grant a divorce, especially if the party making the motion was a woman. This led to significant social inequity as well as other issues.

Before 1972, if someone left the marital residence for any reason, the court could conclude the person had abandoned the marriage. The court might then issue a divorce decree based on the abandonment. Moreover, it can negate the deserting partner’s claim to a property division, parental rights, and alimony, depending on the circumstances.

After Michigan passed its no-fault law, abandonment started to matter far less. Today, the legal concept of abandonment is seldom ever applied in divorce proceedings.

 

Is Walking Out on Family Wrong?

Even though it’s frequently awkward and uncomfortable, both parties have the right to live in the marital home until the divorce is formalized. It is typical, though, for parties to eventually find it intolerable to remain in a shared residence. A spouse may occasionally need to leave the house due to major safety concerns such as physical abuse, drug misuse, etc.

It’s not always wrong to abandon your spouse without notice. Consider a spouse who leaves their partner because of unworkable challenges posed by the other spouse, domestic abuse, or both. However, when abandoning your spouse is the reason for the divorce, that person may be regarded “at fault” for the dissolution of the marriage, and being at fault can have legal repercussions in a Michigan divorce case.

When a marriage breaks down, the man frequently leaves first. The mother is commonly but not always, the one who looks after the children the most. However, the father cannot be charged with “abandoning” his children as long as he continues to see them frequently and provides for them. Simply leaving the house is not abandonment in and of itself.

Staying isn’t always the best course of action, especially when you think about the circumstances that frequently result in divorce. Avoiding a domestic argument is a good reason to leave a relationship if the couple cannot seem to stop fighting. It’s more likely to have bad long-term effects if you have a screaming match in front of your children every day while attempting to live in the same place and endure the divorce procedure for several months.

 

Will My Ex Still Have Rights After the Walk Out?

In Michigan, anyone who chooses to leave the marital home before or during the divorce procedure will still be entitled to their share of the property. Once you move out, it might be challenging to return to reside there, but only if your spouse asked for and was granted a court order barring you from doing so. If not, you own the property as well and are entitled to your share of the marital assets.

It may be very difficult to get legal custody of a child if a parent has not seen the child or been actively involved in the child’s life, but the parent should still be allowed to request parenting time. This depends on how long the parent has been gone. It may be necessary, to begin with, for smaller amounts of parenting time or visitation, but as the bond between the parent and child develops, that can be increased.

A parent’s failure to pay child support normally has no impact on the other parent’s claim to custody or parenting time; likewise, a parent’s inability to file for child support has no impact on the other parent’s capacity to seek child support at any point after the parties divorce. 

If you have children, it’s preferable to come to temporary custody, parenting time, and support arrangement before you leave so you and your spouse can make sure the children continue to have a good relationship with both of you. Contact an attorney right away if you are unable to come to an agreement over your children before you move. In order to protect yourself with regard to custody and parenting time difficulties after the divorce, you should make sure that you are maintaining some form of contact with your children.

Instances where a parent has abandoned their children, such as by abandoning them in a dumpster or the woods, are still considered to be criminal offenses. When people inquire about divorce, this is not often what they have in mind.

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Will My Criminal Sexual Record Impact My Custody Matter in Michigan?

You’ve been in trouble before. You’re pursuing custody. You reflect on the question, will my criminal sexual record impact my custody case? Yes, in a nutshell. Will the other parent have more rights than you? Possibly not. Your specific legal problem might be the only one in the world. The court will consider your position in the overall context of your child’s best interests. The protection of the child will be the court’s top priority.

Click here to watch the video Will My Criminal Sexual Record Impact My Custody Matter in Michigan?

Child Protective Services may remove your children from your home if you are charged with a sex crime in addition to facing harsh criminal penalties like jail time and fines. If found guilty of abusing children, you risk losing your parental rights and the right to raise your children with you. If you have been accused of abusing children, Michigan Child Protective Services will look into the matter quickly. If they find evidence of abuse or neglect, they may remove the children from your care and give them to foster parents or another parent.

 

What Does a Criminal Sexual Conduct Mean in Michigan?

About 463,634 victims of sexual assault who are 12 or older are reported each year in the US. Any non-consensual sexual activity is considered sexual assault. It includes forcibly engaging in oral sex, unwanted sexual penetration, or fondling or caressing someone intimately without their consent.

The easiest way to describe non-consensual sex is to engage in sexual behavior with another person, regardless of gender, that person did not consent to. It is possible to communicate in a variety of ways, verbal and non-verbal, and tell whether an experience was consenting or not.

Criminal sexual conduct is the umbrella phrase used to describe all sex offenses in Michigan. Violations like rape, child molestation, indecent exposure, lewd behavior, and child pornography are all considered to be crimes of criminal sexual conduct or CSC. The severity of the offense determines which of the four CSC degrees these sex offenses fall under.

Criminal sexual conduct in the first degree or criminal sexual conduct in the third degree is typically used to describe crimes involving sexual penetration. On the other hand, crimes involving inappropriate or offensive touching are either considered criminal sexual conduct in the second or fourth degree.

CSC 1st Degree is one of the most serious accusations of criminal sexual conduct. A sentence of 25 years to life in prison is possible for two of the four degrees. The obligatory minimum sentence for these same serious felonies, which include some first-degree CSC charges, is 25 years in jail.

The first-degree CSC law in Michigan states that you could be jailed for a maximum penalty of life in prison; additional penalties, including lifetime electronic monitoring and reporting to the sex offender’s register (SORA) for those released on parole later. Most frequently, this would be a tether or an ankle bracelet.

First-degree criminal sexual conduct is frequently referred to in Michigan as “rape,” “sexual assault,” or other similar terms. A person in a position of power who oversees or oversees a detention facility is not permitted to engage in sexual activity in connection with certain “relationship”-related sex crimes, according to Michigan law like child rape or molestation of a child.

 

What Will a CSC Record Mean in My Child Custody Case?

In general, a felony conviction already implies serious prison time, but a CSC carries a whole set of consequences, including some specifically affecting your child custody case.

Consequences of a first-degree criminal sexual conduct conviction may include:

[ 1 ]  Twenty-five years in prison or life in prison;

[ 2 ]  The person is then subjected to electronic surveillance following their release from prison, which might last a lifetime;

[ 3 ]  When the offender is financially capable, criminal court fines and associated court fees may be part of the sentence;

[ 4 ]  The creation of a permanent “record” in the sex offenders register can bring on undesirable outcomes:

  • (a)  The loss of existing work and numerous future job types;
  • (b)  The likelihood that you may lose custody of your children, and all visits will be under strict supervision;
  • (c)  Limit where you can live in accordance with laws of Michigan and other states (for instance, not close to schools);
  • (d)  Being prohibited from continuing in certain professions, such as teaching, being an attorney, a medical professional, and several other professions (such as a pharmacy), due to the major offense;
  • (e)  Being prevented from visiting other countries;
  • (f)  Upon completion of incarceration, anyone in the United States with any type of immigration status will likely be deported.

Your record alone will open you to false sexual abuse accusations, and regardless of their seriousness will be investigated with uniform thoroughness by Child Protective Services or CPS.

A CPS investigation will be initiated in response to allegations of sexual abuse or sexual exploitation with the goal of identifying any cases of child abuse, chronic or severe neglect, abandonment, or other problems. However, these inquiries are frequently made fast, and the investigators may already be convinced you are guilty. As a result, your family may be subjected to unwarranted restrictions or the unjust termination of your parental rights.

Furthermore, CPS can seek to remove your parental rights based solely on the allegations of sex crimes you are facing, without having to show any evidence of real abuse or even witness it. CPS will bring legal action against you if you don’t cooperate. Even if you win, you can still be subject to conditions and restrictions that could have a negative impact on your family.

 

What Are My Chances of Getting Child Custody if I Have a CSC record?

Your chances of getting child custody will really depend on the most recent development about your conviction and the seriousness of the transgression leading to the CSC record.

Judges are required to put the child’s best interests first when making decisions about custody and visitation. And it’s a very widely held belief children are best served when both parents are actively involved in their lives. Judges work to do that in the best way they can. It still holds true whether a parent has a criminal record.

The true difficulty is the type of crime committed, including when it happened, because the term “convicted felon” encompasses a wide range of offenses. And this is where using common sense is going to be a lot helpful.

Be aware some offenses almost always result in a judge denying the offending parent any type of custody. A state’s legislation will often address this problem. Domestic violence against the other parent or the child, sexual assault against the other parent or the child, and any other forms of child abuse are examples of these types of crimes.

If the crime committed doesn’t show behavior that might threaten the child, a judge is more likely to permit criminal offenders to participate in the lives of their children. A theft that occurred ten years ago, for instance, without any future violations by the parent, is probably not going to have a big effect on a custody dispute. But a history of violence would surely, especially if there were recent episodes of such violence.

In general, the chance a violating parent will be granted joint custody increases the lesser the offense and the further in the past it happened. In fact, it’s feasible for the guilty parent to win sole legal and/or physical custody, depending on the other parent’s parenting style and history. 

Just keep in mind that the judge’s judgment will be influenced by the particular facts of each case, with an emphasis on the child’s best interests.

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What Custody Schedule Is Best for a Child?

What custody schedule is best for a child? There truly isn’t a law or guideline that specifies the ideal child custody arrangement. The ideal custody arrangement for any parent’s child cannot be determined by any absolute law. In fact, it is presumed parents would like to spend more time with their children.

Click here to watch the video What Custody Schedule Is Best for a Child?

The needs of the child, the child’s school schedule, and the parents’ work schedules are given greater importance by the court. The custody arrangement will be decided as equitably as feasible, but more important than being fair to the parents, it will be decided in a way that is fair, equitable, and age-appropriate for the child.

Every family is unique, thus some families or their children’s schedules may or may not work. Always keep in mind that the best course of action for the parents may not always be the best course of action for the children.

Older children may be more interested in having stability for weeks at a time without moving places, whilst younger children may prefer more frequent interaction with their parents. Since younger children may bond with one parent more strongly than the other, it may be ideal for the child to spend more time with one parent while still young until the child becomes older and starts spending more time with the other parent.

 

Is There a Guide for Determining the Best Custody Schedule?

Following a divorce or custody decision, it is typical for one parent to be given primary physical custody of the children, while the other is given reasonable parenting time. 

The child has the right to live with the parent who has been given physical custody. Nevertheless, regardless of living arrangements, the non-custodial parent typically maintains legal custody of the children, enabling them to participate in important life decisions. Because one parent provides the majority of the care, the other parent cannot be excluded.

In Michigan, a child’s custodial parent is the one with whom they spend most of their overnights each year. This criterion is comparable to the one used by the Internal Revenue Service to establish a person’s eligibility to file taxes as a dependent.

There are two different types of custody: physical custody and legal custody. However, the term “physical custody” is no longer frequently used, most likely because of political correctness issues. Nobody genuinely has “physical custody” of a child, after all. According to Michigan law, the terms “physical custody” and “custodial parent” are now synonymous.

Most frequently, when individuals talk about a regular holiday custody schedule, they are referring to the FOC’s (Friend of the Court) usual holiday schedule.

The State of Michigan, Macomb County, and numerous other counties set guidelines for parenting time. These suggestions’ “best practices” apply to every situation, including regular weekday and weekend routines, holidays, school breaks, and other special occasions.

 

What Is the Best Custody Schedule for Your Child?

A parenting plan must include a custody schedule. We found that making decisions with the children’s interests at heart helped us make the best choices. We were able to negotiate the complex world of custody schedule because of that perspective. Custody schedules, however, can be a daunting process because every family is unique.

 

Planning Schedules Based on the Child’s Needs

Though it is considerably more typical for modern families than it was for earlier generations to split custody equally, it might not be the best arrangement for your family. It’s ideal to emphasize that a variety of factors can affect how your custody is shared and that it might change over time. Some considerations to think about are as follows:

[ a ]  Your children’s ages

[ b ]  The degree of cooperation you have with the other parent.

[ c ]  Your determination to maintain a regular timetable rather than being flexible

The best custody schedule should be any schedule designed from the perspective of the child, and not the parent. When taking this perspective in planning the custody schedule, both parents must consider the following:

[ a ]  Giving the parents “breaks” while maintaining contact with each parent at least once every few days.

[ b ]  Consistency and predictability.

[ c ]  The needs of the child’s growth are taken into consideration. For example, shorter, more frequent blocks of parental time may be most effective for newborns on a nursing schedule. The parents might arrange for the sharing of breast milk.

[ d ]  When both parents previously took care of the child’s daily requirements, either jointly or individually, during nighttime parenting time.

[ e ]  When a parent has not consistently cared for the child or is not at ease caring for the child, consider a “graduated schedule,” with less parenting time initially and increasing the frequency and duration of parenting time when parenting milestones are achieved.

[  f  ]  When parents are far apart, parenting time should be organized as frequently as necessary. Parents may have to travel for parenting time.

[ g ]  The opportunity for both parents to accompany the child to special occasions like birthdays, religious holidays, and doctor’s appointments.

[ h ]  A prolonged parenting time schedule as the child becomes older, could entail longer periods, such as numerous back-to-back overnights.

 

Using Full Weeks for Custody Schedules

These full-week custody plans should be taken into consideration when children are younger or when parents don’t live close enough to one another to allow for frequent transfers.

Alternating Weeks: Also known as “week on, week off,” this custody arrangement has children spend a full week with one parent before spending the following full week with the other. Parents can select, for example, what day the week begins and finishes on Sunday through Saturday and what time the children are transferred to the other parent. This custody plan prevents a lot of midweek moves.

Two Weeks Each: Children stay with the custodial parents for two weeks at a time rather than switching every other week. The two-week intervals may be too long for more minor children, but it lessens the number of times kids have to move from house to house. To make vacationing easier, some parents would only follow this plan during the summer.

 

Using Midweek Transfers in Custody Schedules

For children, a week without one parent can be too long. In these situations, breaking up the week is a good idea. You should be aware that these schedules divide custody equally over the course of two weeks. 

One parent will have more days during the first week, while the other parent will have more days during the second week. However, the total number of custody days for each parent is equal at the end of the two-week term. There are various ways to fairly divide the weeks.

These numbers indicate how many days each parent will have. Formula 3-4-4-3 means Parent One has 3 days, followed by Parent Two’s 4 days, Parent One’s 4 days, and Parent Two’s 3 days.  The schedules then reset.

3-4-4-3

Parents always have the same three days of the week in a row with this plan, while the fourth day alternates back and forth. One parent might get Monday through Wednesday off, while the other parent would have Friday through Sunday. Thursday switches sides every so often. You should be aware that weekends are not alternated in this plan unless you decide to make a Saturday or Sunday the day that switches.

5-2-2-5

Try this schedule if you would rather alternate full weekends with the children. Each parent has custody of their child on the same two consecutive days of the week, either Monday and Tuesday or Wednesday and Thursday, according to this timetable. Each parent spends the weekend in turn.

2-2-3

Try the 2-2-3 custody arrangement if you want your children to switch between their parents as frequently as you can without doing it every other day. Parent Two is in charge of the children for the following two days of the week after Parent One for two. The children spend the next three days with Parent One. The timetables switch the following week, giving Parent Two two days, Parent One two days, and Parent Two three days.

 

Holiday Custody Schedules

The suggested parenting time schedules offered by Macomb County offer a variety of options for dividing the holiday time a kid spends with each parent. In addition to prescribing that a child spends Mother’s Day weekend with the mother and Father’s Day weekend with the father, the suggestions indicate that parents divide up the following eight well-known holidays:

[ a ]  Labor Day

[ b ]  Memorial Day

[ c ]  Fourth of July

[ d ]  Halloween

[ e ]  Thanksgiving

[ f  ]  Easter Sunday

[ g ]  Christmas Eve

[ h ]  Christmas Day

Four of the eighth annual holidays, with the holidays alternating each year, should be used by both parents to spend time with their children. The Fourth of July, Halloween, Thanksgiving Day, and Christmas Day will all be spent with the mother if the child spends Labor Day, Christmas Eve, Memorial Day, and Easter Sunday with their father.

Additionally, during winter and summer breaks, parents may swap breaks. The present General Parenting Time Schedule of the 16th Judicial Circuit Court is a notable example. We posted an article about holiday custody schedules entitled, “How Do You Split Holidays When Co-parenting In Michigan?” where we suggested holiday schedules you can use.

Flexible custody plans are essential to success. Making sure children have a regular phone or video chat contact with the non-custodial parent can lessen their loneliness. When you prioritize the needs of the children, it’s a good idea to observe how the children respond to absences and then modify the schedule as necessary.

Make sure you keep an eye on your children to see if the custody arrangement is genuinely beneficial to them.

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Can a Parent Deny Parenting Time, or Should It Be Up to Michigan Court Only?

Can a parent deny parenting time? Should it be just a Michigan court deciding this? Should and can sometimes have very different meanings. Can you refuse parenting time? Perhaps you can. Should you refuse parental leave? No lawyer will ever suggest you disobey a court order, such as a parenting time order.

Click here to watch the video Can a Parent Deny Parenting Time, or Should It Be Up to Michigan Court Only?

You can’t actually just decide to refuse the other parent the scheduled visits when a parenting time order specifies those days in a week for visitation. The court has the authority to determine and alter parenting time. There are repercussions for breaking a parenting time order’s specified visitation schedule. If you do refuse parenting time, be sure your justifications will be accepted by the court.

 

What is Parenting Time in Michigan?

The time a child spends with each parent when parents do not reside in the same home is referred to as parenting time in Michigan. In most cases, the parent with sole physical custody has more time with the child than the other parent and enjoys a significant amount of parenting time. 

Parenting time is frequently equal or almost equal when partners share joint physical custody, this is not a requirement.

In a divorce, custody dispute, or other family court issue, a custody and parenting time order may be entered. Parenting time and custody arrangements have a significant impact on your children’s living arrangements, frequency of visits with each parent, and decision-makers for them.

“Reasonable parenting time” is when parents work out their parenting time as they go, without a set plan, and is an option that can be allowed instead of defined dates and times for parenting time. You must submit a request to the judge asking him or her to settle any disputes regarding acceptable parenting time.

A precise schedule exists if you have designated parenting time. You may be able to decide on a parenting time schedule if you feel at ease discussing it with the other parent of your child. You might obtain a court-ordered timetable in place of one you can’t agree on.

 

What Is the Legal Basis for Parenting Time?

Sections 722.21–722.31 of the Child Custody Act of 1970 (Act 91 of 1970) define and outline parental and child rights. The Act addresses many different topics, including guardianship custodial information, parenting time, and grandparenting time. The Child Custody Act also contains very strong provisions against child abuse.

Simply put, Michigan’s child custody statutes make it challenging to grant the other parent custody if there is an established custodial environment with one parent. The court aims to avoid upsetting changes if the child relies on one parent for parental comfort, advice, and punishment as well as for basic needs. 

Unless there is definite and convincing proof that something has to change. The burden of proof is a preponderance of the evidence, which is significantly simpler to show if there is an established custodial environment with both parents.

Parenting time is defined in a court order based on the Child Custody Act of 1970 (Act 91 of 1970), specifically Michigan Compiled Laws (MCL) 722.27a. 

The 12 Best interest considerations are listed in Michigan Compiled Laws section 722.23 and are taken into account by courts when determining custody and parenting time arrangements.

The “best interests of the child” are defined by Michigan’s child custody laws as the sum of a set of considerations, assessments, and rulings by the court.

In general, children have the right to spend time with both of their parents. Unless there is compelling information that would persuade the judge that it would endanger the child’s physical, mental, or emotional health, they are entitled to parenting time.

To further ensure proper implementation of the law, a set of guidelines were put together for this purpose.

Your ally in ensuring that parenting time is applied properly is the Friend of the Court. The Michigan Supreme Court’s State Court Administrative Office is required by MCL 552.519 to provide publications that will assist each friend of the court office in carrying out its functions.

The previous Michigan Parenting Time Guideline was published in 2000 with the intention of educating members of the public as well as professionals, such as court officials who help parents create parenting time schedules. The Michigan Parenting Time Guidelines’ most current revision was only released in March 2022.

 

Who Can Mandate or Modify Parenting Time?

The Michigan Supreme Court’s enforcement of the Child Custody Act of 1970 (Act 91 of 1970) is carried out by the family court in each Michigan County. The family court in the state of Michigan is called Circuit Court.

Each County has a Friend of the Court (FOC) to assist the Family Court. The FOC will typically examine custody and parenting time concerns and provide guidance. The FOC frequently makes recommendations about choices including custody, parenting time, and child support.

If the parties cannot agree, the judge will determine the amount and nature of each party’s parenting time. Judges decide parenting time by taking the child’s best interests into account, much like they do when deciding on custody. The parenting time variables can also be used by the judge to determine how often each parent receives parenting time, how long visits last, and whether parenting time needs to be supervised.

A parent may be given supervised parenting time or no parenting time at all if the judge finds that they are a danger to the child. This might occur, for instance, if a parent is likely to:

[ a ]  Abuse the child sexually or physically

[ b ]  Fail to look after and provide for the child

[ c ]  Put the child in danger by abusing drugs or alcohol

[ d ]  Put the kid in danger of getting hurt in some other way

Michigan state statutes have given the courts the mandate to ensure parenting time is properly enforced and ensure parents follow the parenting time order entered by the court.

If the parents are unable to come to an agreement, an inquiry might be started to learn more about what really occurs during parenting time.

The FOC may be asked to conduct a custody and/or parenting time investigation, also known as an evaluation, and to produce a recommendation in the child’s best interests at the judge’s request. It is required to carry out court-ordered parenting time and custody arrangements when the office receives a valid written complaint. These offices may respond by using the enforcement of parenting.

Can a parent deny parenting time? The answer is you cannot. Should it be up to a Michigan court only? Absolutely yes.

If you want a clear guide on how you can really go about your parenting time, read our article “How to Establish a Visitation Schedule Hassle-Free in Michigan?”

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How Can I Prevent My Ex From More Parenting Time in Michigan?

In general, the court is biased in favor of helping parents who wish to spend more time with their children. Courts generally assume giving one parent more parenting time is in the child’s best interests. The difficulty will arise if one parent objects to the other parent spending more time with the children.

Click here to watch the video How Can I Prevent My Ex From More Parenting Time in Michigan?

You need to have a very compelling reason why you are preventing the other parent from spending more time with the children. Unless your reasons are directly serving the best interest of the child, the court may not be inclined to support your position of preventing more parenting time for your ex. So when a parent is asking the court for more time with children the court is not about to deny the request.

When a child’s parents are divorced or separated, the court will frequently order that the child spend more time with one parent than the other. The terms “shared physical custody” or “primary physical custody,” with one parent having more parenting time, may be used in the court order to describe this arrangement.

 

Why Is Parenting Time Granted as a Court Order?

The role of parents has been a frequent topic of discussion in many of our articles regarding parenting and child custody. Parenting and its tremendous effects should not be taken lightly. In our judicial system and society, it is already a recognized fact.

The parent-child relationship and the home environment, which includes all primary caregivers, are the cornerstones of children’s well-being and healthy development, according to decades of research. Children begin learning as soon as they are born, and they depend on their parents and other primary caregivers to keep them safe and take care of them.

The impact of parents may never be more apparent than during a child’s formative years when the brain is quickly developing and virtually all experiences are formed and influenced by parents and the home environment. Parents set the course for their children’s health and welfare throughout childhood and beyond by encouraging the growth and development of their knowledge and abilities.

The courts will attempt to preserve families whenever possible and when using state power is necessary. The court will not separate parents and their children unless there are exceptional circumstances. In regard to children, we have always discussed what is in their best interest. Having children in the custody of devoted and responsible parents is in their best interests.

The laws of Michigan require that children have positive interactions with both parents. The court must consider the best interests of the child while deciding whether to grant or modify custody.

When someone uses the term “best interests,” they’re referring to a set of legal requirements. The ability and willingness of each party to support and foster a healthy, long-lasting parent-child relationship between the child and the other parent or the child and the parents are of decisive consideration. This demonstrates that, from a legal perspective, limiting or refusing parental time is in direct conflict with the child’s best interests.

 

What Action Can Be Taken Against Me If I Prevent Parenting Time?

The time allotted for a non-custodial parent to spend with their child is known as parenting time. If the custodial parent refuses to give the non-custodial parent parenting time, there can be repercussions. Let’s mention the most common ones.

Contempt of court.

The denying parent could be found in contempt of court as the initial punishment. This implies that a parent who refuses might be hit with a fee or possibly go to jail. If one parent refuses, the other parent might be asked to make up lost parenting time.

Loss of child custody.

The second repercussion is that the parent who refused to share custody may really lose it. The court draws the conclusion that the parent who is refusing to cooperate cannot put the needs of the child first.

The payment of attorney fees.

In addition, the parent who denies parenting time may be responsible for the court costs and attorney fees. A bad idea with potential repercussions is denying parenting time.

 

If I Can’t Prevent Parenting Time, What Options Do I Have?

Now, realizing how seriously you can be affected by your desire to prevent your ex-spouse from having parenting time, you should start thinking about a better course of action. If you feel you have a legitimate reason not to let your ex-spouse spend time with your child then, do the following:

Talk to your attorney about a modification in the parenting time. Ask for a modification for example from unsupervised to supervised parenting time. Then again, you will have to be very serious about the basis for this motion you’re asking your attorney to do. Your own attorney will advise you against it if it has really no basis.

Maybe your ex-spouse has no problem dealing with you, but you have a problem dealing with your ex-spouse. Maybe you don’t need an attorney but a friend or probably a therapist to help you deal with the emotional issues you’re wrangling with regarding your ex-spouse. These issues might spill over to your relationship with your children. Your emotional issues might grow to be very unhealthy in the long run. If the court starts to notice your own inability to deal with such issues you may have trouble convincing the court you are a fit parent.

 

What Options Does Your Ex Have if You Prevent Parenting Time?

If you put yourself in your ex’s shoes, you should be aware of how upsetting it might be to be denied parenting time. If your ex is level-headed, your ex doesn’t need to start slamming doors or fighting with you. Your ex-spouse will call an attorney. Your ex will become aware of how to avoid these obstacles you’re putting up after a talk with the attorney and the Friend of the Court.

 

The steps your ex can take against you.

Your ex will probably take the following steps if your ex’s parenting time ordered by the court has been withheld:

[1] Check the most recent parenting time order issued by the court to confirm that your ex was, in fact, denied parenting time.

[2] Submit a complaint to the FOC office by writing a description of the parenting time infraction. This is the “complaint” about parenting time filed against you.

 

How may the FOC initiate legal action against the parent who is refusing to grant parenting time?

[ a ]  Makeup Parenting Time: Many FOCs begin the enforcement of parenting time with a notice to both parties reminding them that the individual who was denied parenting time must offer the other party makeup parenting time. Either partner may object to the makeup parenting time by writing a written objection to the FOC within 21 days of receiving the notice.

If one of the parties objects, the FOC will pick a different enforcement strategy. If neither party disagrees, the FOC will send the parties another notice alerting them that the makeup parenting time must occur.

[ b ]  Using Makeup Parenting Time: Makeup parenting time must be granted within a year and must match the time that was first denied.

Example:

A party is given one weekend of make-up parenting if one weekend was denied. Before using it, the individual who was wrongfully denied parenting time must notify the FOC and the other party in writing.

[ c ]  Schedule Mediation: During mediation, the parties meet with a mediator who helps them resolve their dispute over parenting time. The court selects the mediator. If the parties are able to reach an agreement, the mediator will prepare their agreement and ask the court to sign an updated order. If the parties are unable to reach an agreement, the FOC office may opt for a different enforcement strategy.

[ d ]  Schedule a Joint Meeting: The FOC may call a joint meeting. A joint meeting of the parties and FOC staff is held to discuss potential solutions to the alleged parenting time infraction. The FOC may set up a joint meeting if the infraction concerns something like pick-up/drop-off times, minor schedule adjustments, or returning a child’s belongings after parenting time. If the parties reach an agreement, a document is drafted by a FOC employee and submitted for the judge’s signing.

If the parties are unable to come to an agreement, FOC employees may propose a court order. If either party files a written objection to the FOC’s recommendation, a judge or arbitrator will hold a hearing to resolve the parenting time dispute.

[ e ]  Schedule a Civil Contempt Hearing: For more significant offenses, the FOC may schedule a hearing. These sessions are also referred to as show cause or contempt proceedings. These hearings may be used if there have been significant or persistent violations of an order.

The alleged offender has the opportunity to explain their activities to the judge or referee or to defend themselves against the accusation of defying the court order during the hearing.

The judge or arbitrator may suspend the party’s job, driving, leisure, and sporting licenses if they don’t offer make-up or continuous parenting time.

[ f ]  Request Parenting Time Modification: The FOC has the right to ask the court to modify the parenting time schedule that was previously agreed upon by the parties. The FOC typically only requests a modification when it is clear that the current order is bad for the parties or the child and the parties lack the ability or opportunity to change it on their own.

In the end, you don’t really have the option to prevent your ex from more parenting time. The law mandates it, the court enforces it, and science about raising healthy kids supports the principle of healthy and consistent parenting time.

The only real option you have is to follow the parenting time order. It’s what’s best for your children.

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Goldman & Associates Law Firm is here to with information about Child Custody and Divorce in the State of Michigan.

What Am I Entitled to in a Michigan Divorce if My Ex Makes More Than Me?

It appears that your ex earns more money than you do. If your ex earns more than you do, you start to wonder what rights you have in a Michigan divorce. Even if your ex earns more money than you do, it might not matter. You are entitled to half of all assets that you deem to be marital in the event of a divorce. 

Click here to watch the video What Am I Entitled to in a Michigan Divorce if My Ex Makes More Than Me?

In the state of Michigan, each spouse is eligible for a half-share of all assets accumulated during the marriage. Child and spousal support will be more influenced by who makes more money than who. The amount of child support or spousal support will be determined and determined using a formula by the court.

 

What Are the Usual Financial Issues in a Divorce?

You are not alone if you are getting ready for a divorce in Michigan. The Michigan Department of Health & Human Services or MDHHS reported that about 20,000 marriages end in divorce each year in the state. Divorce is challenging. Divorce-related financial concerns can be particularly difficult.

 

Marital Assets

You and your spouse must agree on who gets to keep what as part of the divorce process. One of the most controversial components of a divorce case is frequently the division of property. The property and assets of a divorcing marriage are distributed “equitably” in Michigan. To be clear, this indicates that a 50/50 split is not legally required, even though it is possible. The marital property will be distributed fairly.

Common property is not recognized in Michigan. In Michigan, the “equitable distribution” principle is used to divide marital property. In states with community property, asset distribution is meant to be as equal or as close to a 50/50 split as is reasonably possible. Equitable distribution is the division of property in accordance with an assessment of what is fair in each circumstance.

When a couple files for divorce in a state that has community property rules, the court must split the marital estate equally. In states with equitable distribution, judges are free to deviate from a 50/50 division. Though Michigan is an equitable distribution state, the courts normally distribute assets fairly and equally.

 

Marital Debts

Debts and liabilities in a divorce in Michigan must also be shared, just like property and assets. Debt division can lead to disagreement. According to Michigan law, dividing a debt “equitably” is the same as dividing marital property. Either the spouses will receive an equal allocation of the debt or there will be an unequal distribution.

In Michigan, the following factors are taken into consideration when dividing a couple’s debt:

[ a]  How the Debt Got Incurred. When one spouse has a gambling habit that resulted in debt, for example, some debts may be distributed exclusively to the person who incurred them.

[ b ]  Why the Debt Came About: Sometimes the cause of the debt is taken into consideration, such as when it was incurred during an affair.

[ c ]  Your Capacity to Pay the Debt: The court considers the income and potential earning capacity of each spouse to make sure that no one is given an undue burden.

[ d ]  Where the Asset Is Going: If the family automobile goes to one spouse, it’s likely that the debt from the car loan will go with them as well, in order to maintain a fair property division.

 

Child Support

Child support is frequently paid by the non-custodial parent to assist defray some of the costs associated with raising the child. These expenses may involve the cost of housing, clothing, and food. Furthermore, expenses for things like healthcare, transportation, and education are covered through child support.

These costs must be split evenly between the parents if custody is shared. This suggests that the expense of raising a child is shared by both parents. You can still be obligated to pay child support even if you earn more money or have fewer expenses than the other parent. Child support payments are based on a number of factors, including your income, how much time each parent spends with the kids, and how much it will cost to raise the children.

You are required to pay child support if your child lives with you less than half the time. In general, if a child resides with one parent for more than 50% of the time, the other parent is not required to pay child support.

Child support calculations will use each parent’s income to determine who will be responsible for paying child support and how much they will pay in a shared custody arrangement with 50/50 custody.

 

Spousal Support

Spousal support or alimony is intended to give financial stability to a spouse who earns less than their partner. Judges consider a number of factors for determining alimony, such as the behavior of the parties while they were still married, their separate career histories, and more.

The amount of alimony is determined by taking into account the duration of the marriage, the difference in income, and any discretionary income. Gender is not taken into account while determining alimony. A man might be granted alimony. Yes, Michigan does have that position. You can talk about alimony if your marriage has lasted at least 25 to 30 years. The court is more likely to consider alimony in a lengthy marriage than in a short one.

In order to receive alimony, one spouse must be in financial need and the other must be able to pay it. The standard of living that was established for both partners during the marriage, its length, both partners’ potential earnings after the divorce, and the amount of time the dependent partner will need to complete their education or acquire a job-related credential in order to maintain their standard of living will also be taken into account by the judge.

The needs and financial capacity of each spouse will also be taken into account, as well as the estates and property of both partners. Following a divorce, men and women now have equal rights to spousal assistance under the 1979 Supreme Court decision, but only while they are making efforts to become self-sufficient. Few men request alimony; instead, most prefer a one-time payment from the woman if she is significantly wealthier.

 

When Does Income Matter in a Divorce?

In a divorce, income is most relevant in the determination of child and spousal support (alimony). Since both child and spousal support depends on a continuing and changing financial obligation it cannot be based on the value of assets but more on the sources of income.

For the court to be able to determine an equitable amount for child and spousal support, it will depend on the accuracy and truthfulness of information gathered during the discovery process. Disclosure of financial information from both spouses is critical for the determination of a fair amount for both spousal and child support.

When one spouse is primarily in charge of the household finances, the other spouse faces a disadvantage and must invest more time and energy in order to identify all of the assets that are subject to division in a divorce case. Major revisions to the Michigan Court Rules were adopted by the Michigan Supreme Court and took effect on January 1, 2020. The changes were made in an effort to speed up and simplify the exchange of information in divorce cases and to ensure that both spouses make a complete financial disclosure at the very beginning of the court process.

To use the child support calculation, you must know the net incomes of both parents as well as how much time each parent spends with the child. To calculate net income, all gross income is subtracted from particular adjustments and deductions for alimony received, income taxes, and additional payments and premiums made.

Your gross income includes your wage, earnings, commissions, overtime pay, and bonuses. Any royalties, tips, dividends, military specialty pay, and, if they happen frequently enough, winnings from gambling are also included.

Unlike in child support where there is a Michigan Child Support Formula Manual, spousal support or alimony is determined on a case-to-case basis.

 

What Am I Entitled to in a Divorce?

So when you really look at all those mentioned, marital assets, marital debts, child support, and spousal support (alimony) there’s only one aspect of divorce clearly disclosing what you are entitled to. It’s marital assets. And you are entitled to whatever the outcome of the property division which is 50% or half of whatever assets you accumulated in your marriage. Of course with the asset comes the debt that made the acquisition of the asset possible. Clearly, you deserve half of anything you created, earned, and accumulated during your marriage.

What kind of assets or properties are we looking at? Where looking at the marital home, pension or retirement plans, and business as examples. Although the statutes are clear about the 50/50 split in marital assets, circumstances may change the proportions of this division.

If you and your spouse cannot agree on how to divide your assets, the judge will make the decision. Courts in Michigan are required to divide property fairly. Fair, in general, means everyone gets about half of everything. However, a judge may decide to split marital property differently in other situations that are equitable.

Your property may be divided unequally if one spouse was more to blame for the divorce or if that spouse demanded more assets. Sometimes one partner will amass more marital assets while the other will amass more marital debt.

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How Will the Court Determine Who Gets Physical Custody in Michigan?

How will the court decide who will have physical custody?  There may be a sense in Michigan that parents who act out run the risk of losing custody. Ex-spouses might try to exploit these events as leverage in a custody dispute. In child custody cases, the court rarely bases its decision on singular acts or behaviors. 

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The custody of the children is decided by the courts based on a set of twelve factors. The twelve best interest factors serve as a guide for the court as it examines the evidence put out by the two opposing parties who are vying for custody of their children.

The rights and obligations of both parents towards their child can be established by a court proceeding of a specific type, known as a custody case. Parenting time, child support, and custody are all included in this. The child’s residence and decision-making are determined by the person who has custody.

 

What is the Distinction Between Legal and Physical Custody?

There are legal standards for judges to follow in establishing what is in the best interests of the kid, which is a broad definition used in Michigan to determine custody. Often, if the court is on board, parents can come up with their own plan, and the judge will approve it.

On occasion, the court will have to establish the specifics of the custody arrangement in a difficult child custody case. Both physical and legal custody are recognized by Michigan courts. A judge may appoint single or shared custody for either kind of custody.

Let’s point out the distinction between legal and physical custody because it will give context to the significance of getting physical custody.

 

Legal Custody

The decision-making for the child is referred to as legal custody. A parent who has legal custody is in charge of making choices for their child in relation to issues like school enrollment, medical care, extracurricular activity involvement, and even religious upbringing. Keep in mind the phrase “sole custody” is not clearly defined by law. According to the Michigan Custody Guidelines, a parent is said to have sole custody if they receive both primary physical and primary legal custody.

When parents share legal custody, they can collaborate to make decisions that have a big impact on the child’s welfare. The quantity of time the child spends with each parent has no bearing on joint custody. If a choice is contested, however, the court may decide to give one parent primary legal custody over the other. This might occur, for instance, if both parents are devout believers in their own religions but belong to different denominations.

 

Physical Custody

In Michigan, physical custody refers to the child’s residence. If the court determines it to be in the child’s best interests, a parent may be given primary custody. A number of factors, such as involvement in the local community and families, may also be taken into account. The other parent may be given “parenting time” even though one parent may have primary custody.

Both parents may share custody, but it can also be sole or joint. Parents who share custody are said to have joint custody. When parents share legal custody, they must collaborate to make crucial choices for the children. The children live with each parent occasionally if the parents have joint physical custody.

Joint custody would give both parents equal access to the child while maintaining a set schedule. For instance, one parent might be responsible for the child’s care during the academic year while the other is in charge during the summer. Alternating holidays, birthdays, and other significant anniversaries can also be arranged.

The court must take into account joint custody requests from either parent. Unless it is established that joint custody is not in the best interests of the child, the judge must grant joint custody if both parents consent to it. This decision’s justification must be stated in writing.

The length of time the child will spend living with each parent will often be specified in the court order if the judge grants shared physical custody. The court order may stipulate the parents share physical custody so their children can see both of them. When a child lives with one parent, that parent makes all routine and important decisions involving the child.

Even if there may be a joint custody arrangement, if joint legal custody is not granted, significant decisions may still fall under the jurisdiction of one parent. Physical and legal custody arrangements can be made jointly or individually.

 

What is an Established Custodial Environment? What is its Impact on the Determination of Physical Custody of the Child?

In order to establish a custodial environment, the child must have a relationship with a parent or another adult that has lasted for an “appreciable” amount of time. In this relationship, the child looks to the custodian for support and guidance as well as for discipline and instruction. The custodian must also meet the child’s needs and provide “parental comfort.”

The law generally states child custody arrangements should not change. As a result, the judge will always inquire as to whether the child has an Established Custodial Environment (ECE)  with either one or both parents. If so, it would require more proof for a judge to alter the current situation.

When deciding whether there is an ECE, the judge takes into account the child’s life.  Does the child, for instance, turn to one (or both) of the parents for love and adoration, as well as for food, shelter, and other necessities? Is the child old enough to have spent a substantial amount of time in the current situation?

Even if a parent may have custody, it does not mean the child only seeks the parent for parental comfort, advice, and the administration of discipline. It should be highlighted that since they have given the child direction, discipline, basic necessities, and parental comfort, both parents may have created custodial situations with the child.

If the judge rules there is an ECE, the party seeking to change it must demonstrate with clear and persuasive evidence the change is in the child’s best interests.

If the judge rules there is no ECE, the winning party will be the one who can demonstrate, through a preponderance of the evidence, the proposed custody arrangement will be in the child’s best interests.

 

How Does the Court Determine Which Parent Gets Custody?

Parents are frequently able to reach an understanding of the custody and visitation schedules for their court order. They can come to an understanding on their own or with the assistance of the Friend of the Court (FOC).

 

What is the Role of the Friend of the Court in Child Custody?

When a judge is seeking to determine custody, most parents will contact the Friend of the Court office first. The completion of a custody assessment is one of the duties of the Friend of the Court. When there is a dispute regarding child custody or parenting time or both, and domestic relations mediation is refused by either parent or is unsuccessful, or if the court orders it, the law requires the Friend of the Court to investigate all pertinent facts and make a written report and recommendation to the parents and the court regarding child custody. The law further provides that, upon a party’s request, a meeting with the party shall be included in the investigation.

Understandably, parents experience worry and anxiety during the evaluation interview. The idea of having their parenting abilities assessed typically makes parents feel extremely apprehensive. In many cases, parents worry that they might “lose their children” as a result of the evaluation, which may make them feel more anxious.

The evaluator will frequently go over all of the requirements of the Child Custody Act during the conference unless any of the reasons are not in dispute by the parents. How do you show the child that you care about them? is an example of a question that an assessor might ask. How does the other parent show the child that they are loved and cared for?

To address every component of the Child Custody Act, the evaluator frequently asks questions that are similar to one another. The assessor may also ask additional questions in an effort to gather more information. The custody assessor uses the criteria in the Child Custody Act to collect information, draw general conclusions, and make recommendations to the judge.

 

What is the Role of the Family Court Judge in Child Custody?

The Friend of the Court does not make custody decisions; judges do. Judges may only accept suggestions for orders from Friends of the Court and domestic relations referees. The law stipulates that the judge’s judgment in custody disputes must be based on what is in the child’s best interests. When courts conduct custody hearings, they consider all the evidence offered about the Child Custody Act’s criteria in order to establish what is in the child’s best interests.

If the parents do not agree and want the court to approve a stipulation or consent order, a hearing must be held before the judge may make a judgment about custody. Judges will typically approve a stipulation or consent order if they independently decide it is in the child’s best interests. Before a stipulation or consent order becomes a court order, judges must accept, approve, and sign it based on their own findings.

The custody evaluation report that was completed by the Friend of the Court may be read by the judge prior to the hearing. These papers are typically examined by judges to better understand the circumstances of the family. The judge may hear testimony from witnesses during the custody hearing, including teachers, family friends, counselors, etc. Other evidence from school, local records, counseling reports, etc., may also be examined by the judge.

The children are frequently addressed by judges during custody hearings. In their chambers or the judge’s office, many judges speak to teenagers. Sometimes the parents’ attorneys are present when judges decide to address children in their chambers, and other times they are not. The judge’s conversation with the child may also be seen by a Friend of the Court custody assessor.

Who will be present when judges interview children is up to the judges. The judge must document the interview with the children. Judges merely need to note that the child’s option was taken into account without disclosing the specifics to the parents or their attorneys. The Child Custody Act’s other considerations do not outweigh the child’s preference. Judges merely take this into account as one factor.

Parents have the right to appeal a judge’s rulings if they don’t agree with them. A formal appeal is a request made to a higher court to have a judge’s ruling overturned. Domestic relations appeals are heard by the Michigan Court of Appeals. Without taking the matter up with a higher court, parents may ask the judge to reconsider a previous custody ruling.

Only in cases where there has been a meaningful change in the circumstances and the change in custody is in the child’s best interests may judges modify custody after concluding a custodial environment has been established. 

If there was no previously established custodial environment, it is not necessary for it to be persuasive and clear for the judge to change custody. It is crucial to understand that simply because a child resides with a parent, it does not imply that a formal custodial situation already exists.

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Goldman & Associates Law Firm is here to with information about Child Custody and Divorce in the State of Michigan.