Cunningham Family Law Outline Michalmus 2012
Cohabitation and Non-Marital Partnerships
In certain circumstances it is against the law to live together – Criminal Problems
MCL 750.355 Lude and Lasciviously – If L/L = misdemeanor
MCL 750.30 – .32 Adultery – if divorced and ex-spouse live together
Sexual intercourse of 2 people, either of whom is married to a 3rd party – Guilty of a felony
MCL 750.158 – sodomy
Crime against nature – Guilty of felony – punishable by not more than 15 years
Rights Arising out of Cohabitation
The frequent intimate association primarily characterized by the expectation of affectionate involvement is a dating relationship. This term does not include casual relationships or ordinary fraternization between two individuals in a business or social context.
To determine if cohabitation exists for spousal support purposes, the court looks to the totality of the circumstances test which includes living arrangements in common.
Tacking is not permitted when you live with somebody when you are not married. The clock starts ticking the date you get married.
Tyranski v. Piggins – Finding the instant case meritorious, the court held that the parties' agreement, despite their illicit relationship, was enforceable as it was independent of the illicit relationship.
Snell v. Meyers – Under Michigan law it is clear that services rendered during a meretricious relationship are presumably gratuitous.
A contract relating to property made between persons contemplating marriage is called antenuptial
Hybrid of a contract. Contract of consideration whereby parties agree that they will waive protections of law.
To be enforceable an antenuptial agreement:
§ Rinvelt v. Rinvelt – In event of divorce, allow pre-nups allowed but must pass a test. Stronger scrutiny than normal contract.
Must be in writing and signed by the parties;
Entered voluntarily, without fraud or duress and with full disclosure;
Be fair/equitable when executed and circumstances must not have changed that enforcement would be unconstitutional.
Changes in the asset picture at the time of enforcement will not void the agreement unless it is unenforceable. General contract principles are used to interpret the agreement where necessary.
People can contract to treat themselves unfairly.
Pre-nups require consideration. Full disclosure is required. Failure to do so will set aside a pre-nups.
Pre-nups allow creating marital property.
Spousal support and property rights can be waived. Most commonly appreciation will be included in pre-nups.
Michigan statutes make it tough to predict property issues in future.
1981-Contracts for property contemplated prior to marriage were valid after marriage.
Death-very common in 2nd marriage with children of prior marriage. Waive rights.
Problems with Pre-nups:
Tensions, 1 party accumulates more assets.
Requirements for marriage
MCLA 551.1: must be between man and woman.
MCLA 551.3: cannot marry a Sister, Grandmother, Daughter, or First degree cousin – consenguinity. It cannot be closer than second cousins, or another Man.
In re Toth Estate; Toth v. Toth – The court held that marriages between first cousins were permitted under Hungarian law. The court held that, because the marriage was valid in the place into which it was entered it was considered valid.
Invalid Marriage – Cannot Consent:
To bigamy if you are already married; if under 16; if between 16-18 must have consent of 1 parent or guardian; or if a person is incapable of consent or lacks capacity – idiot, insane, institutionalized.
Ceremony or Solemnization
Before a certain person authorized – has to keep records
Fee is required – Money is turned over to state
If screwed up: Marriage is still held up. Any overt demonstration of solemnization is ok.
License: Wait 3 days – BUT – no more than 33 days, Vegas – NOT have to wait 3 days
Presumptions – it is presumed that a marriage is valid
Doctrine of Lex-Lori – Where a marriage is validly contracted it will be good anywhere UNLESS against public policy. It cannot be a two men OR two woman.
Before 1957 in MI just needed consent to get married
Even if CL marriage – MUST get divorced – Prove through circumstantial evidence
Divorce law exists to protect the parties involved.
One method to enter an uncontested divorce judgment is after default.
Convincing a litigant not to hire an attorney could be an example of extrinsic fraud.
A complaint for divorce may be filed upon the allegation that there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.
In the complaint the plaintiff shall make no other explanation of the grounds for divorce.
Before 1970 somebody had to be 100% at fault – Drinking heavily, go to jail, abandon spouse, extreme cruelty, etc. After 1970 the State of Michigan changed its grounds for divorce to no-fault.
One party to a marriage can terminate a marriage – this is called no-fault divorce. Testifying that you don’t want to be married is enough.
Fault – Fault still applies to property, support, and awards of attorney fees
Three complaints can be filed:
MCL 552.7 – Separa
cases are gender neutral and in the best interest of the child. Now, it is public policy that there is a bias against change of the custodial environment to reduce the impact of divorce on the children and to create security on the children.
In a child custody evaluation by the Friend of the Court, the court can consider the report – Duperon.
MCL 722.27(1)(c) – Established Custodial Environment (ECE)
A court cannot amend or enter a new custody order without first determining if there is an ECE:
It is an environment in both the physical and psychological sense in which the relationship between the custodian and the child is marked by qualities of security, stability, and permanence.
Whether a custodial environment exists is entirely a factual determination. The court is not concerned with why a custodial environment exists, but only that it does.
Whether an established custodial environment exists fixes the burden of proof on the parent wanting to establish or change the type of custody granted to each parent.
If an established custodial environment exists, a change may be made only on clear and convincing evidence that the change is in the best interest of the child.
The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in the environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.
If no custodial environment exists, the burden is preponderance of the evidence that the proposed change is in the best interest of the child.
A custodial environment may exist with both parents even where one parent provides the primary residence or majority financial support.
Generally, stipulations as to facts are binding upon the court. However, the existence of a custodial environment is a question of fact for the trial judge to resolve on the statutory factors.
Sibling splits are not favored in Michigan. In most cases it is in the best interest of all the children to be kept together. However, this concern does not outweigh the best interest of the individual child.