Our Michigan DUI attorneys presenting for ICLE and the State Bar of Michigan at Bodman PLC @ Ford Field in Downtown Detroit
When considering a divorce in Michigan, one of your first questions to an attorney might be: hey, what's happens to our home?
The home is usually the largest asset of the parties, especially if substantial equity exists. If minor children are involved, a court is unlikely to order a sale of the home, which seems like the most equitable way to resolve the issue. Courts have viewed this issue in different ways, but the most common is to allow the custodial parent to retain the home to avoid major change for the children while the other party receives other assets to offset the value of the home. This is only possible when the custodial parent would be able to pay the bills associated with the home.
It's also possible for the custodial parent to secure refinancing in order to buy out the interest of the other party. If a buy-out or offset is not possible, the parties may continue to own the home as tenants in common, but the parties need to be able to work together on the maintenance, repairs and upkeep.
No matter the resolution, a residential appraisal should be done on day one so both parties are fully aware of the value of this asset. It's likely that the home will be sold at some point, and it's important to track the value from day one.
Dividing retirement accounts in a Michigan divorce settlement - What are the two methods for determining who gets what?
Retirement benefits included in the marital estate may be divided between the spouses by one of two methods:
(1) the offset method, which does not actually divide the retirement benefits but gives the non-employee spouse other marital assets equivalent to his or her interest in the retirement benefits.
(2) the deferred division method, which gives the nonemployee spouse an actual interest in the employee spouse’s retirement benefits.
The better method in any particular divorce depends on the facts of the case, and should be discussed with an experienced divorce attorney.
Oakland County Family Court - Retirement Assets in a Divorce - 401k, Pension - Michigan Divorce Attorney
Retirement benefits are often the largest single asset in a divorce. Michigan law requires every judgment of divorce to determine the rights, including contingent rights, of the parties to any vested pension, annuity, or retirement benefits and any accumulated contributions in any pension, annuity, or retirement system along with unvested pension, annuity, or retirement benefits.
Vested retirement benefits accrued during a marriage must be taken into account in property settlements, while unvested benefits may be considered “where just and equitable.”
While we all hope to live long healthy lives, estate planning documents help to plan for the future, while addressing what would happen today if you pass. Most people forget that even though these documents are good for life, as life changes and grows, these documents should be updated (See How often should I update my Plan and other frequently asked questions ). All parents hope to live well after their child is financially and physically dependent on them, but should plan for the worst by executing estate documents which select guardians and conservators to care for their children in the event the unforeseen tragedy arises today. Those same provisions can be made for those members of the family with four legs, tails, scales, or feathers.
This doesn’t mean that you need to leave your entire life savings to Rex so he can live out his days at the puppy spa with a gold platted collar, but failing to prepare for what happens to pets in the event that you pass can leaves those beloved members in limbo.
One option is the inclusion of a Pet Trust provision in your estate plan. A pet trust can provide for a pet, setting aside a specific amount of funds for the animal’s care, naming the party responsible for the animal’s future care, and even providing for how afterlife care for the pet should be handled. Any such trust must be drafted in such a way to incentivize the long-term care of the pet in the same manner that the owner would have cared for them. For example, John drafted a pet trust naming Jack the caregiver of his beloved 6-year-old Golden Retriever, Lassie. Jack is also the Trustee of the Trust. John’s Pet trust was funded with $15,000.00 which would be used for any vet bills or food costs for Lassie. John’s Trust also provided that upon Lassie’s death, all remaining funds would be distributed to Jack. Aside from Jacks love for pets and hopeful good nature, what is to prevent Jack from being incentivized to see to Lassies untimely demise to collect a larger balance of the Pet Trust funds?
When drafting a Pet Trust, it will be important for you and your attorney to consider these types of incentives. Just like in planning for guardians for children, pet trusts should name successor caregivers, consider trust protectors to supervise the caregiver and assure the owners wishes are being carried out, and take into consideration the life expectancy of the pet and the average amount of funds needed to care for the pet over the remaining expected life.
Estate planning assures that your wishes and desires are continued well after you are unable to. For many of us, this should include thinking of all of our loved ones, no matter how many legs, beaks, or feathers they may have.
To address your estate plan needs contact the experienced attorneys at Kelly & Kelly Law P.C. to arrange a consultation. From Florida to Michigan, the attorneys at Kelly & Kelly P.C. are here to assist with your Probate, Will, Trust, and Estate planning needs.
Suffering from Gastroesophageal Reflux Disease (GERD), acid reflux or heartburn can trick the Datamaster in Michigan, causing an inaccurately high reading of the blood alcohol level.
The breath machine is supposed to receive and measure alcohol from the deep lung tissue, a region of the lungs called the alveoli. Breath alcohol concentration from this “alveolar air" or “deep lung air” is thought to correlate with blood alcohol concentration.
But GERD can cause alcohol to travel from the stomach back to the throat and mouth. When this happens, the suspect blows this mouth alcohol (rather than alveolar air alcohol) into the breath machine. The machine then provides a reading higher—often times dramatically higher—than the DUI suspect's true BAC. A person with a true BAC of .05 can read .20, which turns a case that would not be charged into a criminal case.
This problem is not limited to those who suffer from regular or chronic GERD. Anyone who recently ate a large meal, a greasy meal or a spicy meal may experience acid reflux or heartburn. If you take a Datamaster breath test during this period, the results may be erroneously high.
If the biological parent will not consent to the adoption, then the biological parent’s parental rights must be terminated. Termination can occur if the other parent has not provided regular and substantial support for two years or more, and has also failed to regularly visit or contact the minor child for two years or more. It is also a requirement that to proceed with involuntary termination of one party’s parental rights, the parent making the petition has sole legal custody of the minor child at issue.
How do I get guardianship of my grandchild, and what effect does a guardianship have?
Guardianship of a minor gives you the power to make decisions on behalf of a minor when the minor’s custodial parent is unable to act in this capacity for their child.
You can obtain guardianship of your grandchild if the child’s parent consents to the guardianship, and agrees to sign the necessary documents that must be filed with the court in order to effectuate the guardianship.
If the child’s parent will not consent to the guardianship, you will need to file a petition for appointment of a guardian of a minor with the probate court in the county in which the child resides at the time of filing.
This can be a complicated process and is best accomplished with the assistance of an attorney experienced in this area of the law.
Why did my child’s father receive notice of a paternity action but I didn’t file anything or ask anyone to file anything on my behalf?
If you have applied for, or are receiving any form of state aid, including MIChild, the prosecutor in the county in which the minor child resides likely filed a child support case against the father of your child. Contact an experienced family law attorney at Kelly & Kelly to assist you in navigating through this process.
Child support is modifiable based on a change in circumstances since the entry of the last court order. This could mean a decrease or increase in income, a change in parenting time, or an increase or decrease in the cost of health insurance or childcare. The birth of another child by one party may also cause a change in child support.
No. The child support you receive from your child’s other parent is not your money – it is your child’s money, therefore, the court will not allow you to forego receiving child support from the other child’s parent if the Michigan Child Support Formula indicates that you should be receiving funds. However, in certain circumstances, you can request to deviate from the Michigan Child Support Formula depending upon the specific facts of your case.
The Friend of the Court is a division of the circuit court which is designed to assist parties in several areas related to their family law issues. This includes providing enforcement for custody, parenting time, and support orders; conducting investigations on custody, parenting time, and support issues; making recommendations on custody, parenting time, and support issues; offering mediation to settle disputes; and providing forms for parties unable to utilize the services of private attorneys.
How do I collect child support in Michigan, can I have the money withheld from my ex-husbands check?
How do I get my child support?
If you are the recipient of child support then you have the right to decide how you want to receive your payments. MISDU (Michigan State Disbursement Unit) will process your support payments by collecting the monies directly from the other party’s employer per an income withholding order, and automatically divert the monies to your account.
How do I pay child support?
If you are subject to an income withholding order, the Friend of the Court will automatically direct your employer to withhold your support from your paycheck. If you have opted out of the Friend of the Court services, then you are required to submit payments directly to the other party. You should keep track of all payments made and never pay child support in cash.
How much child support do I have to pay?
In the State of Michigan, child support is based on a formula which considers each party’s income, number of overnights each party has with the minor child, tax filing status, cost of child care, and health insurance expenses. While there is now an online calculator available for public use, to ensure accurate calculation of child support, it is imperative to consult an experienced family law practitioner.
Family Wizard Michigan - what is it, and should I using this program to talk to my ex-wife or husband?
Our Family Wizard is a website designed to facilitate communications between separated or divorced parents in relation to their children. It promotes “cooperative parenting,” and includes features like a calendar to notify each parent of the children’s extracurricular activities, doctor appointments, dentist appointments, etc., and a message board for communicating regarding the children. This program is especially helpful when parents have difficulty communicating in person or via phone, email or text messaging. There is an annual cost associated with using the program. An experienced family law attorney can advise if this program is appropriate for your family.
My kids are refusing to come with me for my court-ordered parenting time and the other parent is telling them they don’t have to, is there anything I can do?
Your child’s other parent cannot unilaterally decide to limit or eliminate your parenting time, regardless of what they allege your child’s preferences are. If this behavior continues, you should have an experienced family law attorney file a motion to enforce the most recent order of the court awarding you parenting time, and to request makeup parenting time.
Similarly to changing custody, parenting time is modifiable if there has been proper cause or a change in circumstances since entry of the last Court order, and it is in the child’s best interest to modify parenting time. A party wanting to modify parenting time must file a motion with the Court, and has the burden of establishing proper cause or change in circumstances exist to warrant modification of the current parenting time schedule.
How do I change custody?
Custody is modifiable if there has been proper cause or a change in circumstances since the entry of the last Court order. A party wanting to modify custody must file a motion with the Court, and that party bears the burden of establishing the proper cause or change in circumstances. Proper cause means changes that have or could have a significant enough effect on the child’s life such that a change in custody should occur.
A change in circumstances means that since the entry of the last order on custody, conditions which have or could have a significant impact on the child have materially changed. The Court will consider the established custodial environment in determining the weight of the burden by the party requesting the custody change. Established custodial environment exists with the parent whom the child looks to for support, guidance, and basic needs. The Court must also consider what custodial arrangement is in the best interests of the minor child.
My child’s other parent lives in a different school district than I do, where will my child go to kindergarten?
If you and the child’s other parent share joint legal custody, you must make a collective decision regarding where your child will be enrolled in school. If you cannot agree on where to send your child to school, you can file a motion with the court requesting the judge decide where your child will attend school. The judge will hold an evidentiary hearing (like a mini-trial) to determine which school the child should attend. Another way to handle this issue is to attend mediation with an experienced family law mediator, a neutral third party who can assist you and the other parent in coming to an agreement on this issue.
Can I move out of Michigan with my kids?
The ability to move outside of the State of Michigan with your children will greatly depend on whether there has been a prior determination of custody and the provisions of any custody order. When parents share joint legal custody, the ability to move out of Michigan requires consent of the other parent or Court approval.
Can I travel with my kids after I am divorced?
Depending on the terms of your divorce judgment, travel is only prohibited to countries that are not signatories to the Hague Convention on the Civil Aspects of International Child Abduction. However, if you share custody of your child, then you will need to obtain a passport for your child together, or petition the Court to allow you to obtain a passport.
“Right of first refusal” means that if, during your parenting time, you need to arrange for childcare for your children because you are not available, you must first offer that time to the children’s other parent, and vice versa. For example, if you have parenting time with your children on Saturday night, but you have a wedding to attend and will need to hire a babysitter, you must first ask the child’s other parent if they are available and would like to have that time with the children. This is a difficult provision to enforce, and is only recommended in very limited situations. Speak with a family law attorney to determine if this type of provision is appropriate for your family.
What is a “nesting” parenting time schedule?
Nesting is a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out of the home into separate residences. In other words, the parents are “visiting” the children instead of the children visiting the parents. This form of parenting time can be beneficial for children, but will really only work if the parents are extremely amicable.
What if my kids want to tell the judge they don’t want to live with or spend time with their other parent?
If the judge wants to speak with your children regarding their preference for custody and/or parenting time, they will request a special “in camera” interview, meaning a private and confidential meeting between the judge and your children, to which neither you nor your spouse will be privy to.