Divorce Proceedings
Residency requirement
Michigan is a No-Fault state – what does that mean?
Alternate dispute resolution – mediation/arbitration/collaboration
What can be modified
Effect of bankruptcy on settlement agreement post Bankruptcy Reform Act 2005
Family Law Outline – James Cunningham – Winter 2016
< >Requirements in order to get married in MI:Inherently unique relationship, it is a civil contract18 years old16-18 years old need permission of at least 1 parentUnder 16 years old need permission from both parentsMust be capable of “contracting law” = entering into a contractCannot marry if same sex or a relativeAlthough a marriage may be recognized in another state, it will be recognized in MI EXCEPT:Same sex marriages Bigamist marriages
< >What are the statutory grounds for a court to grant a judgment of Divorce?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.
< >If each of the spouses files a complaint for divorce in 2 different counties, which court will most likely retain the divorce action?File to first Rule as long as both courts have JDX
< >What allegations must a complaint for divorce contain?filed in the circuit court 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.
< >This is the ONLY basis for divorce in MINo other explanation of the grounds for divorce
< >NO FAULT Divorce StateEXCEPT when it comes to determining:Child supportParenting time Property DivisionSpousal support
< >Describe a situation when a party might want to incorporate a settlement agreement by reference, but not merge the settlement agreement into the divorce judgment.
Property Settlement that is MERGED
Property Settlement that is NOT MERGED
Merged into Judgment for divorce = becomes part of the divorce judgment & is enforceable as such
The statute of limitations is 1 year.
If not merged then it will not be subject to traditional contract defenses such as fraud and there is only 1 year to appeal the settlement.
Benefits the monied spouse b/c the time for opposing party to appeal is only 1 year (much shorter than 6 years)
Not as susceptible to arguments for setting aside the settlement agreement
is considered a separate contractual agreement. Therefore, contractual remedies apply.
Statute of limitations 6 years.
Separate criminal proceedings are allowed forNON-merged agreement,but prohibited from divorce proceedings.
< >What are the residency requirements for filing of a complaint for divorce in the state of Michigan? Describe facts that may demonstrate a Plaintiff has met the residency requirements. Resident of State for 180 daysIn the County for 10 daysResidence = permanent home or place person intends to remain permanentlyPhysical Presence in state = Not necessarily = residenceFacts showing residency= signing lease, moving items, other factors showing intent to remain
< >List all mandatory provisions required in every judgment of divorce entered in the state of Michigan. Must state the property to be distributed & howRelease of Dower RightsList Individuals rights to insurance proceeds (but to change a beneficiary, party must also change with insurance companies)Parties rights to pensions, annuity, & retirement benefitsProvision granting/reserving/denying spousal support
DM –Domestic w/ minor children
DO- Domestic without minor children
Must Address:
Child support
Parenting time
Spousal Support
Optional Provisions:
< >Attorney’s Fee’sThings parties agree to: (Court cannot order these things but can enforce)Non-modifiable spousal supportNo one of opposite sex spending the night during parenting time
NOTE :
< >Anything pertaining to property divisions is final, binding & non-modifiableUNLESS fraud, duress or mutual mistake Issues pertaining to children ARE MODIFIABLE until the youngest child is 18 or out of high school (whichever comes 1st) but not beyond the age of 19 ½ years old
Requirements To file a divorce in MI:
< >Statutory GroundsAge (Petitioner Must be 18 years old)Residency (state = 180 days & county 10 days)Residency Exception (EXCEPT = Escaping a domestically violent situation and the person they are escaping from is NOT a US citizen) Complete Names of both parties (before & after marriage)Statement of the attorney for the plaintiffor if a plaintiffis appearing without an attorneyTher
tlement (memorialized = acknowledged by the parties on an audio or video recording)
< value="12" >The party's me stipulate to arbitration consistent with a domestic relations Arbitration Act (DRAA). What must each party acknowledge in writing or on the record before the court may order a case to arbitration?
< >Written & Signed agreement or on the record that arbitration is:Binding & right of appeal limitedMay not be appropriate in all cases such as Domestic violenceArbiters powers & duties will be outlined in written agreement and must be signed by parties before it can beginArbiter has power to decide issues assigned and court will enforce decisionParties have right to attorneyParties are responsible for fees
< value="13" >What type of ex parte orders are typically entered with a court in a domestic relations actions and what is the required showing before a court may issue an ex parte order?
Ex-parte Orders
< >Entered without notice to the opposing party b/c they could precipitate harm if the party is notifiedCts want to preserve the status quoPreservation of assetsPay billsParenting time & custody
< >The cts will enter ex parte orders to:Maintain the status quoProtect/preserve the marital assets
< >Opposing party has 14 days to object once served
< >If no objection = temporary order until the final order is enteredTemporary Orders = Interim orders – prior (pre-judgment) to final judgment of divorce
< >PPO is a type of ex parte order2 types: ( ONLY TESTED on Domestic PPO)2)non-domestic
< >PPO & Divorce = 2 different case filings/2 diff. casesPPO restrain personal liberty such as contactThey prohibit ppl from harming/assaulting the other partyOpposing party has 14 days to object & must have notice
< >ONCE A RESPONSE IS FILED = NO MORE EX PARTE ORDERS UNLESS THERE IS SOME IMMEDIATE/NECESSARY REASON TO DO SO
