I. Divorce Attorney Overview
Although every case is different, there are some common questions that people have as they face divorce and custody proceedings. However, your specific situation may be somewhat different from the norm; please call a divorce attorney at 734.927.2018 to discuss your matter. One thing that is true throughout all cases is that Divorce is never an easy experience, and this is more true if you are not in agreement with your spouse about ending your marriage.
One of the things that seem to help clients through what may be a traumatic experience is some knowledge about what might happen next and about how Friend of the Court (FOC), Referees and Judges will resolve contested issues. Your divorce attorney or family law attorneys are not psychologists or social workers, but they have dealt with the emotional issues you are facing over the course of many years. Do not be afraid to ask questions if you do not understand the process. The best solutions for problems you and your spouse are facing in the dissolution of your marriage are the ones that you can agree upon. If agreements are not possible, then your attorneys will attempt to help you resolve the issues.
Your family law and/or divorce attorney’s representation depends upon your input. You need to provide your family law and/or divorce attorney with facts and documents pertaining to your case. You also need to discuss your ideas and your wishes about how the issues are to be resolved. Everything that you tell your family law and/or divorce attorney is confidential. It is very important that you tell your family law and/or divorce attorney the truth. If you withhold information, it might adversely affect your case. Even facts that are “bad” – or embarrassing – should be disclosed so that your family law and/or divorce attorney may help you make the best decisions.
Your case will never be settled without your express input and consent. Your family law and/or divorce attorney will counsel you and advise you throughout the process. Most cases settle without going to trial. This means that most clients, through their family law and/or divorce lawyers, come to an agreement that is either put in writing and signed by both parties or is put on the record in open court. This agreement is then incorporated into a “Judgment of Divorce.” However, do not feel that you must agree to something that you do not understand or that you do not feel is fair. Talk about the proposals for settlement over with your family law and/or divorce attorney so that you can make a decision about accepting the proposed settlement or making a counter-offer. Once an agreement is finalized, the opportunity to set it aside is either very, very difficult or impossible.
Your family law and/or divorce attorney’s role is to give you advice and information, especially to relate your particular set of facts to the law that a referee or judge would rely upon in resolving the issues if you were to go to trial. Your family law and/or divorce lawyer’s role is also to help you look at options and alternatives that you might have, to guide you through the process, and to cooperate with you in your attempt to get the best possible results. A person who wants to end his or her marriage must have a Circuit Court Judge enter a judgment of divorce bringing an end to the marriage. To grant the divorce, the judge must find that there has been a breakdown in the marriage to the point that the parties cannot live together as husband and wife. At least one of the parties must appear in court and confirm that this breakdown has happened. In Michigan, a divorce can be granted even if one of the parties does not want the divorce.
II. Before an Anticipated Divorce Begins
Assemble as much information as possible regarding family financial matters. Include copies of tax returns for the last three years; lists of marital assets and debts such as are often required for credit applications; wills, trust, and estate planning schedules such as are often prepared by an attorney, accountant, insurance agent or bank trust officer; the most recent statement from your spouse's employer regarding employee fringe benefits, especially retirement pensions; and recent account statements from financial institutions such as banks, credit unions, and brokerage houses.
Take steps to establish some measure of economic independence. Establish a bank account in your own name and put away as much money as possible. If you do not have credit in your name, apply for credit cards and make payments on a timely basis. It is often easier to start with department store and gasoline credit cards before applying for major credit cards like Visa and MasterCard. Do not incur any additional joint debt with your spouse. If you are currently working, remain employed. Make needed repairs on major appliances, cars, etc., out of joint family funds. Also, take care of all your medical and dental needs out of family funds. Since a marriage must last for ten years for one spouse to be eligible for social security benefits based on the other spouse's earnings history, you may want to delay your divorce until that period has run.
Measures of Precaution.
When divorce is likely, it is advisable to take prudent actions. Do not sign any joint income tax returns if you have reason to believe they have not been properly completed. Where you have joint accounts, notify financial institutions of the possible divorce and request that no large transactions be permitted without approval of both spouses. Close out joint charge accounts, or, if you want to retain them, notify the creditors in writing that you will no longer be responsible for your spouse's purchases. If you are covered under the health insurance of your spouse's employer, verify that your coverage has not been terminated.
III. During the Divorce
When divorce proceedings begin, first review the items listed above and make sure that you have taken every precaution. Also, bear in mind that much of the advice applicable to the time before the divorce applies equally after the proceedings have begun. We will request that you prepare a budget of expenses, on both an annual and a monthly basis, for you and your children (if any). We will then use your budget as a basis for requesting temporary support from your spouse and negotiating adequate support for you in the final settlement.
We will make sure that, where appropriate, your settlement includes provisions for alimony, child support, health insurance for the children and division of responsibility for their medical and dental expenses not covered by insurance, division of property interests including any pensions or other retirement benefits, appropriate security and life insurance protection to ensure the continued payment of support and any installment payments of property division, responsibility for debts of the marriage, including mortgage payments and property taxes while the divorce is pending, responsibility for any contingent liabilities (such as tax deficiencies that may be assessed on previously filed tax returns), division of any income tax refunds to be received, entitlement to claim dependency exemptions on future income tax returns, payment of legal fees, and any special educational or other expenses of the children (for example, psychological therapy).
We will spend time during the statutory waiting period helping you to define and narrow the issues and trying to resolve the issues with your spouse. Discovery procedures may be used in order to find the net worth of the parties and the general financial status of the family. Sometimes discovery involves requests for information in writing. Interrogatories (written questions) may be sent out requiring answers under oath from the recipient in order to obtain complete financial data. Documents may also be sought by written requests in order to prove the existence or value of assets or debts. After these somewhat informal procedures, your attorney may schedule depositions in order to obtain further information from the other spouse or other persons who have the needed information.
Sometimes experts are required to assist. These may be appraisers, actuaries (if pensions are involved), or accountants in the case of financial information. They may be psychologists who will perform evaluations to assist the court in determining custody issues. You will be requested to give your input and consent as these procedures are used. After information is gathered, your attorney will draft a proposed settlement offer (or you may receive one from your spouse and his/her attorney). You will be given the opportunity to study the proposed settlement, and to consult with your attorney about the pros and cons of various settlement proposals. Your attorney will give you an opinion of what he or she thinks a court would likely do in deciding these issues so that you may evaluate the proposals before accepting or rejecting them.
If you and your spouse are unable to reach a settlement, the court may appoint a mediator to help resolve the matter. In the alternative your attorney and your spouse’s attorney may agree upon a mediation. Sometimes parties agree to arbitration, which may be binding or non-binding, as the parties arrange and agree.
If you and your spouse are able to reach a settlement, there are two ways that it might be finalized. First, the parties might be asked to sign a property settlement form containing the provisions of the settlement. In the alternative, sometimes the parties may be required to approve the settlement in court, before the judge, after it is placed on the record. Divorce ends the legal relationship between a husband and wife. A divorce does not end the family relationship, although the relationship will change. Many decisions should be made before a Judgment of Divorce is granted.
These decisions may include but are not limited to the following:
1. How will the parties provide guidance and care for the children? (Legal Custody)
2. How much time with the children are spent with each parent? (Physical Custody and/or Parenting Time)
3. How will financial responsibilities for the children be divided? (Child Support)
4. How will the children’s medical, dental and other health care expenses be paid? (Health Care Coverage)
5. Will children be allowed to move from the State of Michigan ? (Domicile)
6. What amount, if any, should one party contribute toward spousal support, either for a short time or on a permanent basis? (Alimony)
7. What property is considered as marital property?
8. How should the marital property be divided? (Property Settlement)
IV. Judgment of Divorce
The Judgment of Divorce is document that finalizes all of your agreements with your spouse or, if a trial occurs (this happens in less than 10% of all divorce cases), it contains the decision of the Judge about the property, child custody, and support issues in your case. After a settlement is reached and/or the case is tried, the court will enter a Judgment of Divorce. This document will grant the divorce. It will also deal with such matters as alimony, custody, child support, parenting time and the property settlement. There are some provisions that are required by statute which will also be included, extinguishing a spouse’s rights in insurance policies on the other spouse’s life and extinguishing dower interests (future interests in real estate). Prior to the time this Judgment is entered, you will have the opportunity to examine this document and to have your attorney explain it to you before you approve it.
V. After the Divorce
We will help make sure that health insurance coverage will remain uninterrupted. Where you do not independently have such coverage by reason of your employment, continued coverage under your spouse's employer's coverage is available under the provisions of a federal law known as COBRA. In addition, consider your own life insurance and disability insurance needs. We will advise you to make appropriate changes in beneficiary designations on retirement benefits or any insurance that is presently in force. We will also help make sure that your former spouse is currently paying premiums on any insurance he or she is required to maintain under your divorce settlement as security for support or other payments to you.
Various Tax and Financial Matters.
For the divorced spouse who did not handle tax and financial matters during the marriage, a number of new responsibilities must be assumed. Estimated income taxes may have to be filed quarterly, especially by spouses receiving alimony. If your post-divorce tax situation is particularly complex, we may refer you to a tax specialist. Investment decisions may have to be made regarding securities or liquid funds awarded in the divorce. Here, too, we can provide helpful advice.
Finally, if you made a will or trust before the divorce, it should be reviewed with us so that appropriate changes can be made. If you do not have a will or trust, we advise that you make one after a divorce. We can assist you in making such a will or trust please call us at 734.927.2018.