Laurie Schmitt Family Law

W. Michigan family law specializing in Collaborative Divorce

616.608.4634

Archives for July 2021

Common Divorce Questions: Is there Alimony in Michigan?

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Common Divorce Questions: Is there Alimony in Michigan?

Michigan law allows for spousal support, commonly referred to as alimony.  There is no set formula as to how the amount of support is determined.  Each case is decided according to its unique circumstances.

Factors Courts Consider for Alimony/Spousal Support

When one party requests alimony, the court considers many factors before deciding to order support, and if so, how much, and for how long.  Those factors include:

  • Past relations and conduct of the parties.  Although Michigan is a no-fault state, fault may be considered for the purposes of spousal support.
  • Length of the marriage.  The longer the marriage, the greater the likelihood support will be ordered.  A spouse in a short-term marriage, which is not defined in the law, will generally not receive support.
  • The ability of each party to work.  One party to the divorce who has not worked outside the home for a long period of time may not have the skillset to get a job.
  • Source and amount of property awarded to each one.  If the person requesting support is walking away with a lot of the assets, like equity in the marital home, an IRA, or retirement pension, the court is less inclined to award support.
  • Age of the parties.  This affects the ability of a party to find a job.
  • The present situation of each party.  This includes the earning potential of each party, whether there are minor children who need to be cared for, and other similar factors.
  • Health of the parties.  Does one spouse need to be cared for and the other one healthy and who has the ability to pay?
  • The standard of living while they were married.  The court does not want one spouse to be living quite well while the other one lives in poverty.  The court will fashion an order to equalize the standard of living of the party’s post-divorce.
  • Any other factor the court deems relevant.  This is a “catch-all” factor intended to allow the court to consider any factor to help make the decision based on the general principles of equity and fairness.
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How Schmitt Law, PLLC, Can Help

Although there is no set formula, at our Schmitt Law office we have a software program where we enter all the objective evidence.  It then gives us a ballpark amount of what we should request for spousal support, and for how long the client should receive support.  We work with these numbers to try to effectuate a settlement without court intervention.

If no settlement is forthcoming, we then prepare a trial brief that goes through all the factors in detail, so the court can see that our numbers are good ones.  We still understand that the judge has full discretion in determining the outcome of spousal support.

For more information and assistance with your divorce issues, contact us at Schmitt Law, PLLC.

Common Divorce Questions: I’ve Told My Spouse I Want A Divorce, Now What?

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Common Divorce Questions: I’ve Told My Spouse I Want A Divorce, Now What?

The first visit between a client and attorney will often begin with the client announcing, “I’ve told my spouse I want a divorce.  Now what?”  At Schmitt Law, PLLC, we first inform the client of their rights and responsibilities and then go over the most important aspects of how to proceed.

1) Filing the Complaint for Divorce

The first thing to consider is when to file the complaint for divorce petition and how it should be served on the non-filing spouse.  We encourage the client to respect their spouse, enough to tell them before they are served with divorce papers that, “I’ve retained an attorney and will be filing for divorce.”  Then, work out how to officially serve the spouse.

This will make the process smoother than if the first time the spouse hears about the divorce is from a process server.  If the spouse agrees to accept service voluntarily, we can even mail them the petition.

2) The Discovery List

We provide our clients with a list of documents we need to proceed with the divorce.  The more information the client can give us the easier it will be to proceed.  It is a comprehensive and extensive list and includes the need for all financial documents.  For example:

  • Tax returns.
  • Bank statements.
  • Financial documents showing retirement accounts, pensions, IRAs, 401(k)s, and similar accounts.
  • Deeds to real estate.
  • Financial documents from a business or professional practice.

It may take a while for client to pull these documents together.  If the client does not have access to these documents, then I get them from the other spouse or that spouse’s attorney.

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3) Choosing a Divorce Process

There are options for how the divorce process can proceed.  One choice is Collaborative Divorce.  We give our clients two copies of a flyer about Collaborative Divorce, one for the client and one for the spouse.  We also provide information about a website that has detailed information about how the collaborative process works and names of attorneys in their area who practice collaboratively.

If we decide to use the Collaborative Divorce process, then we do not file the petition until the attorneys are on board with the process.

After the other spouse has retained an attorney, we will talk over the phone about how to move forward.  If the collaborative process is not going to work, then we talk about the options of filing the petition.

Even if the parties decide against using the collaborative process, Kent County has made it mandatory that for the couple to go through mediation before they can get to a final hearing.

For more information, contact me, Laurie Schmitt, at Schmitt Law, PLLC.  I am an Attorney, Mediator, and Collaborative Divorce lawyer.

Common Divorce Questions: How Long Does It Take to Get Divorced?

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Common Divorce Questions: How Long Does It Take to Get Divorced?

One of the most common questions divorcing couples ask is, “How long will it take?” The answer depends on how litigious the parties are.  The more issues they can agree upon between them means the less time they spend in court and the quicker their divorce can become final.  There are some statutory requirements that must be followed.

Divorce Requirements

Michigan law establishes waiting periods depending on the individual circumstances.

  • There is a two-month waiting period after the filing of the divorce petition for a couple who has no children.
  • There is a six-month waiting period after the filing of the divorce petition for a couple who has children.

A final divorce decree cannot be entered earlier than these established times.  Divorces generally take a lot more time when the parties cannot agree and court hearings are required for a judge to step in and make the decisions for them.  The only way divorce can really be final within these time frames is if the parties can agree on every issue.

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The More the You Can Agree the Quicker the Divorce.

When couples cannot agree on issues like how to divide the assets, child custody and visitation, child support, and spousal support, the longer the divorce will take.  Especially now with COVID-19 creating a backlog in court dates in most Michigan counties.

Finding common grounds on the these and other issues will mean getting to a final divorce settlement quicker.  This burden also falls on the attorneys who need to do what they can to encourage amicable agreements instead of dragging out the case with unnecessary litigation.

If the couple can set aside their emotions and treat the decisions like business decisions, the case can proceed faster to a final settlement.

Attorneys at Schmitt Law, PLLC, Can Help

Laurie K. Schmitt, founder of Schmitt Law, PLLC, is an Attorney, Mediator, and Collaborative Divorce lawyer.  When possible, she guides her clients through amicable divorce settlements so they can move forward with their life.  Contact Laurie to schedule a consultation.  You can discuss how long to expect your divorce to take and to understand how she can help you in your unique circumstance.

Common Divorce Questions: How Is Child Support Determined?

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Child support can be a contentious issue.  The way it is resolved in our jurisdiction is that all family law attorneys use the same support formula the court uses.  We have a software program at Schmitt Law, PLLC, that we use to determine the amount of support one parent pays to the other.

What is Child Support?

Child support is a court-ordered payment from one parent to the other to help support the raising of the children.  It stems from the legal theory that children have a legal right to financial support from both parents.  A parent cannot avoid paying child support by agreeing to have his or her parental rights terminated.

The Michigan child support formula determines which parent will pay support.  Some factors considered are:

  • The income earned by each parent.
  • The number of children that are supported.
  • How many overnights the children spend with each parent.

We put those numbers into our software program, and it objectively gives us a number.  The parents can deviate from that amount only if there is a legitimate reason to do so.

If one parent wants the other to pay a different amount, we must do a deviation addendum explaining why and file it with the court.  A friend of the court and the court must approve the request, and then it becomes the order of the court.

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Why Does a Parent Pay Child Support?

Some parents get confused about why they pay child support.  They may say “I buy everything for my kids.  Why do I have to give the other parent any money?”  The answer is that Michigan state law says it is the child’s right to receive support and the parents may not waive it.

The child support formula involves determining amounts to be paid by each parent for:

  • The uninsured portion of health care costs to be paid by each parent.  The custodial parent will have to reach a certain amount of out-of-pocket payments before that number is used.
  • Basic needs for food, clothing, and shelter.
  • School supplies.
  • Extracurricular activities.

If the parents want to agree on an amount, and the court confirms it meets the needs of the children, the parents can do that.

One thing the court cannot do is mandate how the receiving parent spends the money.  That parent does not have to keep an accounting of how the money is spent.  The paying parent cannot micromanage the spending habits of the receiving parent.

Am I am able to receive child support during the pendency of the divorce action?

On the onset of the divorce, either party may file a motion to establish temporary custody, parenting time, and child support.  This Order will remain in effect until the Court issues a new Order, or until the Judgment of Divorce is signed.

For assistance with your child support issue, contact me, Laurie Schmitt, at Schmitt Law, PLLC.  I am an Attorney, Mediator, and Collaborative Divorce lawyer.

Common Divorce Questions: How Do We Keep the Cost Down in Our Divorce?

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Common Divorce Questions: How Do We Keep the Cost Down in Our Divorce?

A major concern of divorcing couples is the cost of the divorce.  The bottom line is that the more adversarial the couple is the more the divorce will cost.  The more the spouses fight about issues the more expensive the divorce will be.

Asking the court to settle issues that the spouses could settle between themselves costs money.  Motions are filed.  The other party responds.  Court time must be reserved.  All these things are costly.  The cost of divorce depends almost entirely on how much the couple fights and how willing they are to settle the issues amicably between them outside of court.

Avoid the “Tupperware Wars”

The cost of divorce is driven by the parties’ willingness to set aside their anger and to start making good and logical decisions.  Paying attorneys to fight with each other over something the couple could resolve between them does not make sense.

Spouses often argue over the division of petty items that can be easily replaced.  I refer to these fights as the Tupperware Wars.  There are sensible ways to divide or replace these items without court intervention.

For example, the parties fight over who gets an asset when it would be less expensive for them to let the other party have it and for them to go buy a new one.  People fight over things like who gets the Monopoly game?  Who gets the everyday dishes?  Who gets the Tupperware?  It is far less expensive to buy (new dishes, Monopoly game or Tupperware) than to pay for drawn-out court appearances where the court is forced to make a decision that neither party may be happy with.

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Suggestions for Dividing Heirlooms and Other Expensive Items

There may be heirlooms of sentimental value that cannot be replaced.  Perhaps the couple owns a grand piano or antique cars.  These items need to be appraised and a monetary value attached to them.  This still may not resolve the emotional issues attached to the items.

A spouse may need counseling to deal with the emotions involved in the divorce and over items with sentimental value.  That is not the role of the attorney who has no training in that area.  My office has a list of good counselors I feel confident recommending.  I work with my clients to find someone who is on their healthcare provider list.  In a divorce case it is better to have the attorneys work on the legal issues and allow those who are qualified to counsel to do so.

In reaching an out of court settlement the only time the court hears from the clients is at the final hearing.  The court will likely congratulate the parties on working well together to get it done without the court’s intervention.

For assistance on asset division and any other aspect of your divorce process, contact me, Laurie Schmitt, at Schmitt Law, PLLC.  I am an Attorney, Mediator, and Collaborative Divorce lawyer.

Collaborative Divorce – A Better Way

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Collaborative Divorce - A Better Way

Divorcing couples are often unaware of how a Collaborative Divorce works.  They gravitate toward traditional litigation because that is what they know.  At Schmitt Law, PLLC, one of the options is the Collaborative Divorce process which allows the couple to divorce dignity and be effective co-parents in their new life as single parents.

Why I Believe in Collaborative Divorce

Traditional litigation is an adversarial process pitting one party against another each trying to “win” the case they present to the court.  A Collaborative Divorce is designed to put control into the hands of the couple themselves.  They resolve their issues together without court intervention.  There are many advantages to a Collaborative Divorce:

  • The couple maintains control of the process.  There is an open exchange of ideas.  They can reach a fair and equitable child-centered resolution without needing a court to decide for them.  In litigation, when a couple cannot agree on custody and visitation, courts are charged with the duty to make decisions that are in the best interest of the children, but a judge will never know the family as well as they know themselves.
  • The couple maintains personal dignity and respect.  They can co-parent effectively after the divorce.  They make the decisions themselves about how much time each parent spends with the children, how they will spend holidays, and how they will manage the children’s extra-curricular activities.
  • Experts are available to help with decision-making.  A team of qualified experts are available to assist the couple in decision-making.  For example, a financial neutral will help with tax implications of a settlement, possible spousal support and can give direction on reasonable child support options.  The financial neutral also creates post-divorce financial models for each party to give them a clear picture of their budget options.  Child Specialists can help with childcare decisions.  Counselors can help work through communication issues that may be blocking how to solve what may seem like insurmountable disagreements.
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  • It is confidential.  Nothing is filed with the court except the Consent Judgement of Divorce.  Financial documents and other personal information is not filed with the court as it is in litigation.
  • It can be less expensive.  A Collaborative Divorce avoids the expense of litigation since only one set of experts are retained.  The couple commits to full disclosure instead of going through a lengthy, back-and-forth fact-finding process of litigation.  There is only one court hearing where Judgement of Divorce is presented for the signature of the judge.  It then becomes the final divorce decree.

For more information about how the Collaborative Divorce process can work for you, contact me, Laurie Schmitt, Attorney at Law, at Schmitt Law, PLLC, by calling 616-608-4634.

Change of Domicile and the 100 Mile Rule

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Change of Domicile and the 100 Mile Rule

Are you contemplating moving out of town or out of state with your child? Will this move be more than 100 miles from the child’s current legal residence? Has the court awarded you joint legal custody or sole legal custody?

 Before you decide to move with your child, you should review your court order. Did it grant both of you joint legal custody of the minor child? If so, you will be unable to move with the child more than 100 miles from the child’s current legal residence without consent of the other parent, or permission from the court. The child’s legal residence is where each the parties lived on the day the order was signed by the judge. This is called the 100 Mile Rule.

Did your court order grant you sole legal custody of the minor child? If so, this is the exception to the 100 Mile Rule. If you have sole legal custody, you will not have to seek the consent of the other parent, or the permission of the court if you want to move more than 100 miles from the child’s legal residence. You have determined that you have joint legal custody of the minor child. And let’s assume the other parent will not consent. You will need to pursue your request for a change of domicile through the court. The court will review the factors found in MCL 722.31 to determine if they will grant your request for a change of domicile.

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MCL 722.31 Factors:

  1. Whether the legal residence change has the capacity to improve the quality-of-life for both the child and the relocating parent.
  2. The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.
  3. The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.
  4. The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.

When applying these factors, the court’s main focus is whether the move will improve the quality-of-life for both the child and the relocating parent, not just the parent. The focus must remain on the child. Courts want to hear about quality-of-life issues such as:

  1. The quality of the schools in the proposed location. The court will determine if the school is comparable to the child’s current school.
  2. The availability of extra-curricular activities. If the child is currently involved in extra-curricular activities, what is the availability of similar activities for the child in the proposed location.
  3. The presence of extended family in the current location verses the proposed location.
  4. Any other factors that provide the court with specifics of how this move will enhance the child’s life.

Because of the complexity of a change of domicile case, it can be difficult to represent yourself. Furthermore, you can expect that the results for a change of domicile case will vary significantly from court to court, as courts interpret the standards for a change of domicile very differently.

To conclude, it is best to seek the advice of a family law attorney versed in change of domicile cases prior to you filing any motion seeking to move with the child.

Contract to Make a Will

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Case Study regarding a plaintiff that was in a long-term relationship with Anthony Bzura (Tony) that lasted over 40 years, but the two never married.

339305 PELLIE MAE NORTON-CANTRELL V ANTHONY BZURA TRUST AGREEMENT
Panel: DBS DAS MFG 
Lower Court: WAYNE PROBATE COURT, No. 15-811336-CZ
Opinion – Per Curiam – Unpublished
20181023_C339305_39_339305.OPN.PDF

Plaintiff was in a long-term relationship with Anthony Bzura (Tony) that lasted over 40 years, but the two never married.  When Tony’s health began to deteriorate, plaintiff became his caretaker.  According to plaintiff, Tony always promised to “take care” of her, and indeed, plaintiff received assets from Tony totaling over $300,000 in the time leading up to and following his death in June 2015.  However, plaintiff believed that Tony’s promises involved a much greater sum, and in July 2015 she filed a claim against his trust for over $2,700,000. The trust disallowed the claim, and plaintiff brought suit in probate court seeking to recover against the trust under a variety of contract theories. 
 
The probate court determined that MCL 700.2514, which provides that a contract to make a will or devise must be in writing, barred plaintiff’s claims.  Accordingly, the probate court granted defendant summary disposition.