Birmingham, MI Family Law | Law Firm of Victoria, P.C.

Frequently Asked Questions

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Frequently Asked Questions

  • Does it matter who files first?

    In most cases, the answer is yes. The party that files first typically has the right to prepare the judgment of divorce.

    It also becomes an issue if the husband and wife reside in different counties, because you need only to reside in the county where either of you lives for 10 days in order to file there. That could be important, not only for convenience (you could be traveling to a distant county for your divorce if he filed first in a different county), but also because different counties have different approaches on issues such as custody & parenting time as well as spousal support.

    We prefer to file first because it typically allows us to have certain ex-parte orders entered with the court to maintain the financial status quo and a mutual restraining order to preserve the marital assets.

  • Does fault matter?

    Sometimes.

    Michigan is a no-fault divorce state. You do not need to prove one party is at fault to be granted a divorce.

    However, fault can be considered when dividing property, awarding spousal support, awarding attorney fees, and sometimes in custody and parenting time issues. If one party is found by the court to be at fault for the breakdown of the marriage, the other party could receive a larger share of the assets, a larger spousal support award for a longer period of time and/or be awarded attorney fees.

  • Am I responsible for his debt?

    Maybe.

    The critical question is, what was the debt for?

    If his credit card debt includes substantial charges for items that did not benefit you or the family (i.e., his trip to Vegas with his pals, his down payment on the Harley Davidson that he’s keeping), then you probably will not be responsible.

    For most other charges (i.e., food, gasoline, home or auto repairs, etc.), they are considered marital debts and will be apportioned equitably, though not necessarily equally.

    Generally speaking, the debt follows the asset, so if you are awarded the car, you assume the debt on that car. It is also a good idea to obtain your credit report to make sure you are aware of all outstanding debt in your name.

  • Can I move out of the home with kids before a divorce is final or can he be ordered to leave?

    Unless there is domestic violence and/or property damage, or the immediate threat of violence, it is not a good idea to move out of the home with the minor children without having a court order in place to give you the right to take the children from the home.

    If you take your children from the home, the father could seek relief from the court by obtaining an order for their immediate return.

    The courts look poorly on a parent who does not encourage and foster a good relationship with the other parent. This type of conduct may hurt your ability to obtain custody if a custody battle ensues.

    Generally speaking, it is best to talk to an attorney before removing the children from the marital home, unless there is an immediate threat of violence.

  • What is a separate maintenance?

    Separate Maintenance, which is referred to as a judgment of separate maintenance, is a proceeding filed within the family division of the circuit court.

    The separate maintenance process is very similar to a divorce proceeding. The initial pleadings, discovery, and settlement process are all conducted in the same fashion as a divorce proceeding. The negotiations will lead to a settlement which will be memorialized into a judgment of separate maintenance. The judgment will divide all of the assets and liabilities of the parties and resolve the child custody issues.

    This process is most common in situations where there is a health insurance issue, and one of the spouses has a condition, which would preclude them from obtaining health insurance. A judgment of separate maintenance may allow that spouse to stay on the other’s health insurance indefinitely until one party decides to convert the judgment of separate maintenance into a judgment of divorce.

    Separate maintenance is also an option for women with a moral or religious objection to a divorce.

    Learn more about Separate Maintenance

  • How do I make sure I know of all assets so he can't hide anything?

    You can increase the probability that all of the assets are disclosed by engaging in the discovery process. Parties in a divorce action have the right to engage in the process of discovery to determine all relevant facts regarding assets and liabilities, including possible hidden assets or liabilities.

    The most common types of discovery are interrogatories, requests to produce, requests to admit, subpoenas, and depositions. Should one party fail to disclose assets to the other during the discovery process and such assets are discovered subsequent to the divorce, under Michigan law, the family court has the discretion to order the party who failed to disclose assets to forfeit all or part of those assets to the other party and pay the other party’s attorney fees and investigative fees in locating the undisclosed assets.

  • Should my husband and I go to a mediator to settle our case without attorneys?

    No. It is important for you to have representation during the divorce or family law process.

    A mediator, as a neutral party, cannot advise you as to whether you are entering into a fair and equitable settlement. Further, the mediator cannot act as your advocate.

    Therefore, you run the risk of entering into a settlement without any advice as to whether the settlement is in your best interest.

  • How can I pay for attorney fees if he has control of all the money?

    It is important to establish your own credit, and we would suggest you open your own charge card to aid in paying for your divorce.

    Other possibilities are acquiring a personal loan and/or borrowing money from friends or family.

    Whichever direction you choose, we could then request that your husband reimburse you for some or all of the debt that you acquired in paying for your legal fees.

    Alternatively and depending on the facts of your case, a motion can be filed for him to pay for some or all of your attorney fees. The court would then hear our argument and rule as to whether your husband should pay for your fees. Remember, there is no guarantee that a judge would award fees.

  • What is the average cost of a divorce?

    It is very difficult to calculate the average cost of a divorce.

    At Victoria, we generally bill on an hourly basis. A retainer fee is required up front and varies depending on the circumstances and complexity of the case issues. This does not mean that a divorce will cost exactly the amount of the retainer fee requested; it may be more, or it may be less.

    There are many factors that influence the cost of a divorce, including, but not limited to the actions by your husband, the actions by your husband’s attorney and the actions of the court. If your case requires us to appear in court often (to file motions, objections, etc.) then obviously, your case would be more expensive.

  • I have been the primary caregiver to children. Is it possible he could get custody?

    There are two types of custody: legal and physical.

    • Legal custody means that both parents have input in major life decisions for the child (i.e. major medical issues, school selection, religion, etc.). It is very rare for a parent to get sole legal custody absent extraordinary circumstances.
    • Physical custody is what most people think of when considering “custody” i.e., who will the children reside with.

    It is the court’s general opinion that it is in the child’s best interest to have a good relationship with both parents.

    Without meeting with a client one-on-one, it is impossible to know the likelihood that a parent may be granted sole or joint physical custody. It is best to meet with one of our family law and divorce attorneys for an initial consultation. Most custody and parenting time issues can be resolved without the need for the court to make a ruling. That being said, the court, if called upon to do so, looks at many factors when deciding custody and parenting time, also known as “the best interest factors.”

    Learn more about Custody and Parenting Time

  • How do I terminate parental rights?

    To terminate parental rights in Michigan, you need to file a petition to terminate parental rights before the family division of the circuit court. The petition can seek to terminate the parental rights of a non-custodial parent who does not support or see the child. The court must find some form of abuse or neglect, which gives the court jurisdiction to hear the case. The court must then find termination is in the child’s best interests.

  • How will health care coverage change for my children and I?

    Your health care coverage that is provided through your spouse’s employment stops when your divorce is final.

    Ongoing coverage for you may be available under COBRA (a federal law that makes health care insurance portable, in some situations).

    Michigan statutes require the court to order one or both parties to maintain health care coverage for the child if available as a benefit of employment or at a reasonable cost.

    Both parents must keep the friend of the court apprised of the availability of a health care plan and must notify the friend of the court of any changes regarding that plan.

  • How are attorney fees determined?

    Attorney fees are governed by the Michigan Rules of Professional Conduct for attorneys. A lawyer may not enter into an agreement for, charge, or collect a contingent fee (a percentage of the monetary award) in a divorce case.

  • How much will I pay in attorney fees?

    It is impossible to estimate how much your attorney fees will be at the conclusion of your case.

    Your attorney fees will vary depending on the amount and nature of the services rendered, the time, labor and difficulty involved, the character and importance of the litigation, the amount of assets and value of the marital estate, and the professional skill and experience required by your attorney.

  • What is a cohabitation agreement?

    A cohabitation agreement is a written contract that governs the division of joint and separate property and states the rights and financial and general obligations of the parties. (These agreements do not govern any issues related to any children of the parties.)

  • What are my rights? Are they the same as that of a married woman?

    Unmarried cohabitants are not entitled to the same rights as married parties regarding property acquired during the period of cohabitation. A cohabitation agreement can establish the right and duties of the parties regarding their earnings and property during and after cohabitation.

    Cohabiting parties may also want to consider estate planning and a medical care power of attorney in addition to a cohabitation agreement.

  • Can I use the same attorney as my husband? We plan on an amicable divorce.

    An attorney can ethically only represent one party in a divorce action. The attorney can only give legal advice to the party with whom he has an attorney-client relationship. Therefore the other party has no legal representation and no legal advice in the divorce action.

  • We plan on a simple divorce; can we do this online?

    The Attorney General’s Consumer Protection Division has received numerous complaints from consumers regarding an online divorce website. “Consumers should use extreme caution whenever they provide their social security number or other personal information online, especially if they are dealing with a company they are not familiar with.”

  • Do grandparents have rights? What are grandparent's rights?

    Grandparents may seek grandparenting time under the following circumstances:

    • An action for divorce, separate maintenance, or annulment involving the child’s parents is pending before the court;
    • The child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled;
    • The child’s parent who is a child of the grandparents is deceased;
    • The child’s parents have never been married, they are not residing in the same household, and paternity has been established that the individual is the father of the child;
    • Legal custody of the child has been given to a person other than the child’s parents or the child is placed outside of and does not reside in the home of a parent; or
    • In the year preceding the commencement of an action for grandparenting time the grandparent provided an established custodial environment for the child, whether or not the grandparent had custody under a court order.

    The United States Supreme Court requires state courts considering grandparent visitation requests to apply a presumption that fit parents act in the best interest of their children. Troxel v Granville, 530 US 57; 120 S Ct 2054 (2000).

    In Michigan there is a presumption that a fit parent’s decision to deny grandparenting time does not create a substantial risk of harm to the child’s mental, physical, or emotional health. To rebut this presumption a grandparent must prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional heath. If the court finds that a grandparent has rebutted the presumption then it shall consider whether it is in the best interests of the child to enter an order for grandparenting time. In determining the best interests of the child the court shall consider all of the following:

    • The love, affection, and other emotional ties existing between the grandparent and the child;
    • The length and quality of the prior relationship between the child and the grandparent, the role performed by the grandparent, and the existing emotional ties of the child to the grandparent;
    • The grandparent’s moral fitness;
    • The grandparent’s mental and physical health;
    • The child’s reasonable preference, if the court considers the child to be of sufficient age to express a preference;
    • The effect on the child of hostility between the grandparent and the parent of the child;
    • The willingness of the grandparent, except in the case of abuse or neglect, to encourage a close relationship between the child and the parent or parents of the child;
    • Any history of physical, emotional, or sexual abuse or neglect of any child by the grandparent;
    • Whether the parent’s decision to deny, or lack of an offer of, grandparenting time is related to the child’s well-being or is for some unrelated reason; and
    • Any other factor relevant to the physical and psychological well-being of the child.
  • What areas does the firm serve?

    Our legal team at The Law Firm of Victoria, P.C. is proud to provide representation and counsel to women involved in family law and divorce cases in the counties of Oakland, Macomb, Wayne, Washtenaw, Livingston, Monroe, Genesee, Lapeer, and St. Clair.

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