Considering divorce? Here's 8 women sharing their stories

" I never wanted to get divorced. I had moments of clarity, but I shut them down. I mean, I remember one time telling my coworker who got a bouquet of flowers that that was so wonderful. She asked if I had gotten anything and I said no, but that my husband was so wonderful, every day. I didn’t mind . . . ."

Article here (from fatherly.com)

What is marital property in a Michigan divorce? What is separate property?

Q: What is marital property in a Michigan divorce? What is separate property?

A: Martial property is anything - assets, property, or debts -- that was gained during or because of the marriage. For example, bank accounts, credit card debt, the home (or homes), 401k accounts, cars, and so on. Whether it is titled to one party, or both, all these things are marital property.

As such, when someone files for a divorce, these items will all be divided during the divorce. This means that one party might keep the house, and the debt associated with it, if he or she can pay for the value that belongs to the other party. Sometimes instead, the parties decide to sell the house, and split the proceeds. Either the parties can make the decision on property through mediation or other negotiations, or have the court do it during a divorce trial at the end.

All divorces - whether with our without children - will have to address property settlements in the final divorce judgment, whether they decide or whether a trial happens.

Separate property, by contrast, is something that one party can claim to have outside of the marital property. How does one have separate property? It could be inherited from a family member, and kept separate from the marital property, perhaps. Or it could be designated as separate property in a pre-nuptial (or post-nuptial) agreement.

If however, something is separate, it could become marital property if it becomes co-mingled. Let me explain: If one party inherits property, but pays to maintain it with marital funds, and then a spouse's name is added to the title on the property, then the argument becomes stronger that this separate property is now considered marital and should be split during the divorce.

If you feel that a separate property issue is present in your current, or potential divorce, I strongly recommend that you take your facts to a family law attorney for further analysis.

What is "discovery" in divorce cases in Michigan?

Q: What does it mean when you get served with interrogatories? I am getting divorced in Michigan, and my husband's attorney sent me all this paperwork to fill out. Do I have to? It seems a bit excessive.

A: Interrogatories are part of the discovery process in divorce cases in Michigan. 

Discovery is a period set by the court in a divorce case to determine things that the court will need to know before a judgment of divorce is entered.

Discovery can cover many topics, such as : income and assets of the parties, debts of the parties, employment history (this is related to income), educational history, infidelity (this may relate to fault of the marriage breakdown, and/or custody), criminal history (could relate to custody), and so on.

Some questions asked in interrogatories may seem too broad, but that doesn't mean they don't have to be answered. Ask an attorney for help.

Since you have been served with interrogatories, that means you will need to provide a written response for your husband's attorney. If the interrogatories also had requests to produce, you will need to make copies of things like tax returns, pay stubs, 401k statements, etc. Also, you will have to respond within the timeframe, or you could be facing a sanction for not responding. The deadline will be 28 days after you have received service of the interrogatories.

Please don't delay on this, as I said, sanctions (this is a fine to you) can result from not responding on time. You could also be sanctioned for giving an answer that is less than honest.

Other forms of discovery can be: subpoenas to your employer, subpoenas to your banks, depositions (this is where you can be asked questions about what's in the answers to your interrogatories), and so on. Best of luck in your situation.
Yours,
Nancy

Incapacitated individuals and family law: who can file for divorce?

Q: Can a guardian or conservator file for divorce on behalf of an incapacitated individual?

A: Yes. 

The Michigan Court of Appeals has recently ruled on this issue. See In Re: Burnett Estate,

834 NW 2d 93 - Mich: Court of Appeals 2013.

If an individual becomes incapacitated, it's likely that he or she will then have a person acting for him or her. It could be a conservator -- who's in control of his or her finances, or a guardian -- who's in control of his or her personal decisions (like where to live, what doctors to see, etc.). 

That guardian or conservator -- whether appointed by a court or selected through another method-- is allowed under Michigan law to file suit, and be sued on the incapacitated individual's behalf. (See Michigan Court Rules 3.202 (A) and 2.201 (E)). Under the Burnett case, that includes a suit for divorce (and, presumably custody). 

In the Burnett case, a divorce was filed by the conservators of the Plaintiff. The Defendant later motioned the court for summary judgment, asking for the circuit court judge to dismiss the action, based on the case being filed by a conservator.

The circuit court dismissed the summary judgment motion, saying a conservator does have authority to file on behalf of an incapacitated individual. Other issues existed in the case. But once the case was decided, the Defendant appealed on multiple grounds, including the grounds that the conservator should not have been allowed to file, and that the circuit court should have granted the summary judgment motion.

The Court of Appeals disagreed with this ground of Defendant's appeal, and interpreted the Court Rules to allow for a divorce to be filed by a conservator or guardian.

"Had the legislature intended to prohibit an action by a guardian on behalf of a spouse, it could have expressly said so in the language of [the statute]." Burnett, at 97.

Have more questions about family law or estate planning (or the inter-twining of the two)? Ask me! Post your comments or questions on this blog. 

Advice for a happy marriage from the Pope: Three things to say

Pope Francis has offered some Valentine’s Day advice for a lasting marriage, saying the recipe for success lies in saying three simple words: “Please, thanks and sorry.”

Article here. 

Judge removed from divorce case after sending one party facebook friend request.

A Florida judge who sent a Facebook friend request—which was rebuffed—to a litigant in a divorce she was presiding over has been removed from the case, the Wall Street Journal Law Blog reports.
Judge Linda D. Schoonover reached out to litigant Sandra Chace ex parte with the friend request, according to a Florida Fifth District Court of Appeal opinion (PDF). Chace did not accept the request after her lawyer advised her not to.

Article here. 

10 things not to say if you want your marriage to be healthy

Keep your marriage healthy & don't say these things!

article here.

Divorce information in Michigan - a brief overview of family law issues

What follows is a brief overview of issues in Family Law. For more information, contact me, or view my website, nancyballastlaw.com 

Divorce - Time Lines

The time you are waiting for your divorce to be final depends on several things. If you are married with minor children, the waiting time is at a minimum six months, as set by the state statute governing divorce. If you are married without minor children the waiting time can be less. This all depends on whether, as the deadline approaches, there are still issues to be settled between the spouses, such as property division, or spousal support.

Spousal Support

Spousal support (formerly called alimony) is not an automatic "given" in any marriage. The court decides whether to award spousal support, and for how long, depending on several factors. The factors include, but are not limited to: the ages of the parties, the abilities of the parties to work, the length of the marriage, and so on. It's also not a "given" that the man would pay spousal support to the woman, it could be reversed, depending on the situations of the parties.

Child Custody

It's possible that a couple can reach an agreement about child custody before they begin the divorce process. If that's the case, it makes things easier on all parties, and the children as well. But if the parties can't agree on custody, it will be decided by the court. The court takes into consideration the best interests of the child, and may decide that a joint custody arrangement is preferred to one where one party has "sole custody."

Child Support

All children have the right to a parent's financial support until the child is 18 or graduates high school. The amount of support a parent will pay is based on applying the Child Support Guidelines, with the amount of parenting time a parent has as a factor. Joint custody of children will not erase a parent's support obligation. Many factors go into calculating what child support obligations are.

Property

Property settlement is the area of divorce that divides all assets accumulated during or by reason of a marriage. Even if property is titled in one party's name, it may be considered as marital property. If a valid prenuptial (or antenuptial agreement) was entered, that will also be considered by the court.

Visitation

It is presumed that it is in the best interests of the child to have a relationship with both parents that continues during and beyond the divorce process. The court will arrange for visitation that supports a relationship with both parents - whether custodial or non-custodial. Often, parents can agree on a schedule for visitation, but if not, the court will arrange one for the parents. If one party seeks to restrict or limit the other party's visitation, the court will only order this based on clear and convincing evidence that visitation would be a danger to the child's physical, mental, or emotional health. This is because a child has an inherent right to love and affection from both parents, and neither parent should attempt to estrange children from the other parent. It's best not to involve the child in disputes between the parents that often occur during the divorce process.

Friend of the Court

Friend of the Court may be involved in your divorce, custody, or child support case. Friend of the Court is an arm of the court, and it issues recommendations on child support, custody, and visitation. It is also involved in enforcement of child support orders.

West Michigan woman says employer discriminated because she was divorcing

A former non-profit employee said she was fired from her job because she was divorcing and didn't attempt to reconcile her marriage. Article here.The employee's supervisors at the Christian non-profit gave her paid time off to work on her marriage, and attempted to "help" the situation with recommended counseling, among other things.

She's suing in Federal District court because she contends she was treated differently than men have been under similar circumstances at her workplace.