Divorce

What is a Mutual Restraining Order in a Divorce?

June 27, 2022 By Laurie Schmitt

If you intend to file for a divorce, and have any type of assets, it is wise to discuss with your attorney how you will protect those assets while the divorce is ongoing.

WHAT IS A MUTUAL RESTRAINING ORDER?

A mutual restraining order is a document prohibiting parties from disposing or hiding the parties’ assets. By having the court sign a mutual restraining order, it alleviates the concerns that either party may do so legally. In order to protect client’s interests, Schmitt Law, PLLC will seek a mutual restraining order from the court at the onset of the divorce.

WHAT DOES A MUTUAL RESTRAINING ORDER PROTECT?

A mutual restraining order will protect anything you require it to protect, and can be drafted to meet the specific needs of the parties. The following are common examples of what a mutual restraining order may protect while the divorce is pending:

Assets and Liabilities: Neither party may conceal, sell, assign, destroy, transfer, mortgage, or otherwise dispose of or encumber any of either party’s assets (real or personal, tangible or intangible).

Insurance and Beneficiary Designations: Neither party may cancel, borrow against or invade the cash surrender value, encumber, change the beneficiary designation, prepay insurance premiums outside of the ordinary course, or take any action which would change the status of any policy or plan of life, accident, disability, homeowners, vehicle, or liability insurance or any other insurance policy or plan of any kind or description involving the parties.

Health Insurance: Neither party may cancel, or otherwise change the status of any policy or plan of health insurance, or change coverage or deductibles, covering either party.

Pensions/Retirements: Neither party shall redeem, withdraw funds, encumber, borrow against, change the beneficiary or in any way alter the present status or contributions regarding any pension, retirement, profit sharing, bonus, savings or stock purchase plan or deferred compensation program, of either party.

Credit Card and Equity/Credit Lines: Neither party may cancel credit cards or reduce or increase credit card limits, or obtain new credit cards, or reduce or increase an equity line or line of credit or incur additional debt during this proceeding, except use of credit cards in the ordinary course.

Mail: Neither party may destroy, hide, or divert U.S. Mail or electronic mail directed to either party.

Contracts: Neither party may sign any contract for the purchase of any real or personal property, purchase any annuity or other investment, or incur any debt outside the ordinary course of routine and usual practice of the parties; sign or endorse the other party’s name on any check or draft, tax refund or tax return.

WHAT TRANSACTIONS WOULD BE PERMITTED WHILE THE MUTUAL RESTRAINING ORDER IS IN EFFECT?

If a mutual restraining order is entered by the court, it does not preclude payment of bills, nor deposits and withdrawals in checking and savings accounts necessary for the welfare of the household, or other payments to preserve the financial status quo and the property of the parties.

WOULD THE HOUSEHOLD BILLS BE PAID WHILE THE MUTUAL RESTRAINING ORDER IS IN EFFECT?

Both parties would be required to make reasonable and necessary payments to all marital creditors and continue payment of household expenses and utilities and marital liabilities.

WHAT IF WE OWN A BUSINESS?

A mutual restraining order does not preclude either party from operating a business in which they have an interest, or engaging in routine, customary and necessary transactions, practices, and payments associated with the business.

WHAT HAPPENS IF EITHER PARTY VIOLATES THE MUTUAL RESTRAINING ORDER?

The party that violates a mutual restraining order would be held in contempt of court and be subject to imposition of costs, fines, and sanctions; an award of attorney fees; and other remedies allowed by law.

GRAND RAPIDS COLLABORATIVE DIVORCE ATTORNEY SERVING KENT, OTTAWA, AND ALLEGAN COUNTY.

Schmitt Law, PLLC treats each and every client with understanding. We will address any questions and concerns that you may have in order to structure our representation accordingly. Whether you have a simple, uncontested divorce or a complex legal battle that must be litigated, contact Schmitt Law, PLLC today by completing our online contact form, or calling us at (616) 608-4634 to schedule a consultation.

What Happens at a Divorce Trial

June 24, 2022 By Laurie Schmitt

There are several ways your divorce can be finalized. Your divorce case can be finalized through negotiations, mediation, arbitration, or trial. If an alternate dispute resolution fails, and your case is set for trial, what can you expect to take place at the trial? The quick answer is at trial your attorney will present the issues, and the opposing attorney will do the same.

The following is an outline of what a day at trial resembles:

FIRST

OPENING STATEMENTS: Opening statements are an opportunity for both sides to make an opening statement to the judge, briefly presenting their issues and the facts they intend to present. An opening statement is an outline presented by the attorneys, giving an overview of what they intend to show the judge at trial.

SECOND

WITNESSES: Now that opening statements have concluded, witnesses will now take the stand to testify. In a divorce trial, the plaintiff (the person who filed the divorce) will present their witnesses, evidence, and exhibits first. Once they have completed presenting their case, the defendant will call their witnesses and present their evidence and exhibits.

THIRD

CLOSING ARGUMENTS: Once both parties have presented all of their evidence, exhibits, and witnesses, it is time for closing arguments. Similar to opening statements, closing arguments are where each attorney will provide statements to the judge that explains the facts that were presented at trial, apply the facts presented to the Michigan law, and argue to the judge for a particular outcome.

LASTLY

WRITTEN ORDER: After the trial has ended, the judge will review and take into consideration all of the testimony, exhibits, and evidence presented, apply the Michigan case law, and issue a written order. This written order is the judge’s ruling on the issues. After the written order, the plaintiff’s attorney will prepare the judgment of divorce. This judgment of divorce must comport with the findings of the judge’s written order. Once the judgment of divorce is submitted to the court, the judge will sign the judgment of divorce and the parties are officially divorced.

GRAND RAPIDS COLLABORATIVE DIVORCE ATTORNEY SERVING KENT, OTTAWA, AND ALLEGAN COUNTY.

Are you in the Kent, Ottawa, or the Allegan area and have questions about divorce and trial? Laurie Schmitt of Schmitt Law, PLLC has experience bringing divorces to trial and can help you bring your issues to court and obtain an outcome you are satisfied with. Call our Grand Rapids office at 616-608-4634; email us at lauriekschmitt@gmail.com or contact us through our online form to schedule your consultation.

Common Divorce Questions

June 23, 2022 By Laurie Schmitt

Question: What happens if I file for a divorce and my spouse does not want a divorce?

Answer: Your spouse will not be able to prevent you from obtaining a divorce. Even if your spouse tells the court they do not want the divorce, the judge will still grant your divorce.

Question: What do I need to show the court to be granted a divorce in Michigan?

Answer: Michigan is a no-fault state. You only need to show the court that there has been a breakdown of the marriage, that the objects of matrimony have been destroyed, and there is no reasonable likelihood that the marriage can be preserved.

Question: Do I need an attorney to file for a divorce?

Answer: You are not required to have an attorney to file or complete your divorce. However, as some divorces have complicated issues, it may be wise to consult with an attorney to learn what your rights and responsibilities are as it relates to your divorce. And if your divorce is complex, it may best to have an attorney represent you in your divorce matter to protect your rights to real property, retirement accounts, spousal support, debts, custody, parenting time, and child support.

Question: How long will my divorce take?

Answer: Under Michigan law, if there are no minor children of the marriage, the mandatory wait period is 60 days from the date of filing the complaint for divorce. If there are minor children of the marriage, the statutory wait period is six months from the date of filing the complaint for divorce. These statutory wait periods are defined in MCL 552.9(f).

Question: Can I change my last name in the divorce action?

Answer: After your divorce action is final, you cannot change your name and would be required to file a name change case. I encourage all female clients to place a provision in the Judgment of Divorce giving them the right to change their name, but not requiring them to do so.

Question: Will I be able to stay in the marital home during the divorce?

Answer: While the divorce is pending, either party may reside in the marital home, unless the court has entered an order granting one party exclusive use and possession of the marital home.

Question: What if I have been granted the marital home in the divorce, and my spouse will not sign a quit claim deed giving me sole ownership of the marital home.

Answer: You may obtain a certified copy of your Judgment of Divorce and record it at the recording office instead of recording a quit claim deed.

Question: Is trial necessary in every case?

Answer: If you and your spouse agree on the terms of your divorce, you can complete a Judgment of Divorce, each of you sign it, and present it to the court for entry. A trial would not be necessary. In many cases, parties reach an agreement either through their respective attorneys or through mediation, making trial unnecessary.

AN ATTORNEY WHO UNDERSTANDS YOUR CIRCUMSTANCES. GRAND RAPIDS COLLABORATIVE DIVORCE ATTORNEY SERVING KENT, OTTAWA, AND ALLEGAN COUNTY.

At Schmitt Law, PLLC, our clients benefit from years of experience. We treat every client as an individual, taking the time to understand your unique situation, so as to best advise you on the steps you should take. Whatever stage your life is at, you can trust Schmitt Law, PLLC to guide you through the legal process with expertise and compassion, because we understand that family comes first. Contact Schmitt Law, PLLC today by completing our online contact form, or calling us at (616) 608-4634 to schedule a consultation.

How Does Debt Work In a Divorce?

June 20, 2022 By Laurie Schmitt

WHAT IS MARITAL DEBT?

Marital debt is defined as any debt incurred during the marriage (before the date of separation). If you are still living together, then we look at the filing date of the divorce. As a general rule, both spouses will be responsible for one half of the debt incurred during the marriage, no matter who spent the money, and no matter how the money was spent.

HOW DO WE DIVIDE DEBT?

Now that you and your spouse have agreed to seek a divorce, it is imperative that each of you understand what debt you have accumulated, and how it will be divided.

It makes sense that you and your spouse talk about your debt and make decisions on who will retain what debts. You should discuss if and how you will refinance any debt that the other spouse is legally responsible for. And, you should agree to close joint credit cards and lines of credit now, agreeing that no further joint debt will be incurred. Inevitably you will need to stop using joint credit cards, and incurring joint debt. So, the sooner you divide your finances, the better.

WHAT HAPPENS IF WE ARE UNABLE TO COME TO AN AGREEMENT?

If your spouse refuses to work with you to develop a post-divorce financial plan, then your next step is to know what debt you have. If you have little or no information about your debt, you will need to educate yourself on the financial aspects of your marriage.

First, order your credit reports. This will show you what debt you have under your name. It may not be all inclusive of the marital debt. But it is a start in getting the full picture of your debt. Second, write down all of the debts you know. Write down the names of creditors, current balances, account numbers, and note who is legally responsible for each debt. This will assist your attorney and the court in understanding what debt you have, and what the balances were at the time of separation or time of filing the divorce.

In the event that you and your spouse cannot come to an agreement privately, or through mediation, the judge will be the decider of the division of debt.

WHO WILL BE RESPONSIBLE FOR THE DEBT AFTER THE DIVORCE?

Assuming all of your debt is marital, it will be divided equally between you and your spouse.

PROTECT YOURSELF!

Cancel all joint credit cards now! You may bear the responsibility of these debts after your divorce. By cancelling joint credit cards, you are protecting yourself from future responsibility of new debt.

DISCLAIMER

The determination of what may be marital debt in any specific divorce case, and how it will be divided can be complex. This blog discusses only the basic premise that the debt you and your spouse have is marital and will be divided equally. However, laws surrounding divorce and division of debt can be complex.

GRAND RAPIDS COLLABORATIVE DIVORCE ATTORNEY SERVING KENT, OTTAWA, AND ALLEGAN COUNTY.

Divorce can be emotional and messy, and it’s natural for anyone going through a divorce to want to protect their financial interests. Maintaining an objective view of the situation can be difficult when you are struggling with complex emotional issues and personal tensions in your divorce. As an experienced Michigan divorce lawyer, Schmitt Law, PLLC can help you maintain control over your property in divorce, and against taking on responsibility of debt that may not be marital. We will provide detailed guidance and support throughout every step of the process. The right attorney can increase the likelihood of you securing a favorable outcome to property and debt division in your divorce.

Laurie Schmitt of Schmitt Law, PLLC has years of experience representing clients in a wide range of difficult divorce cases. We understand the financial concerns our clients often have regarding their property ownership rights and the doubts they often experience when it comes to property division in divorce. If you are seeking a divorce, contact us today to schedule a consultation. Contact Schmitt Law, PLLC online or by calling (616) 608-4634 for a consultation today.

Personal Property Disputes – Are They Worth It?

June 17, 2022 By Laurie Schmitt

One of the most challenging aspects of divorce can be the division of personal property. Often times the parties are able to work together to divide their personal property. The challenge begins when parties are unable to come to an agreement regarding the division of their property.

At Schmitt Law, PLLC, we educate clients that personal property disputes can be costly; exceeding the value of the actual personal property is dispute. We strongly suggest that clients look at the cost-benefit analysis of their dispute: what is the value of the property in dispute (how much would it cost to replace the item) versus the attorney’s fees associated with addressing the issue either with the other attorney or in court.

When it is clear that parties have reached an impasse as to the division of their personal property, at Schmitt Law, PLLC, we suggest to clients that they work with their spouse to create two lists. The first list will be the undisputed personal property – property that the parties have agreed to the division. The second list will identify the items that the parties are unable to agree as to the division. Often times, when parties go through the process of creating these lists, they find the value in making compromises.

At Schmitt Law, PLLC, we share with clients that judges do not favor personal property disputes being brought before the court. The courts are overwhelmed with cases and cannot realistically spend the time on cases addressing personal property disputes. Parties who are unwilling to divide their own personal property may find that leaving the division of their personal property to the court may lead to both parties being very dissatisfied with the result.

Before you rush off to litigate a personal property dispute consider the following:

How much is the specific item worth?
How much would it be to purchase that item new?
How much will my attorney charge me per hour to address this personal property dispute with the other attorney or in court?
Can I compromise and let my spouse retain the item?
Does this item involved have sentimental value to one party?
Am I really fighting over this item out of spite?
Will the judge believe this is a petty dispute?

In summary, parties must find a way through private agreement, through mediation, or with assistance of their attorneys to divide their personal property.

GRAND RAPIDS COLLABORATIVE DIVORCE ATTORNEY SERVING KENT, OTTAWA, AND ALLEGAN COUNTY.

We understand that filing for divorce can be an emotional and confusing experience. That’s why we are committed to providing personalized service to each client we represent and will be with you through this difficult journey. At Schmitt Law, PLLC we encourage clients to take a more collaborative approach to divorce that promotes positive communication and cooperation. Through mediation or the collaborative divorce process, Laurie guides her clients through amicable divorce settlements so they can move forward with their life. To discuss your circumstances and legal options, contact Schmitt Law, PLLC at (616) 608-4634 to schedule a consultation. Or, contact us online to arrange a consultation.

Pet Visitation Post Divorce

June 15, 2022 By Laurie Schmitt

There are many cases in which parties must address the division of their pets. Often times, the parties have agreed as to which party will retain the family pets. And, with the agreement of who will retain the family pets the parties want to enter into a visitation agreement allowing the other party to have visitation rights with the family pets. The parties look to their attorneys to craft a pet visitation agreement, with the terms being defined in the Judgement of Divorce.

IN MICHIGAN, PETS ARE PERSONAL PROPERTY

The reality is that in the State of Michigan, pets are considered personal property. As such, the court wants a complete division of all personal property at the time the Judgment of Divorce is entered by the Court.

As two people cannot be awarded the same personal property, the Judgment of Divorce would state that one party is hereby awarded the parties’ pet as their sole and separate property free and clear of any claims by the other party.

What this means to parties entering into a pet visitation agreement is that the Court would not uphold language associated with a pet visitation agreement. Therefore, if parties wish to enter into pet visitation agreements, they should do so with the understanding that the terms would not be enforced by the Court.

DRAFTING A FAIR AGREEMENT

At Schmitt Law, PLLC, we understand how difficult it is for divorcing couples to divide pets. With that said, we try to craft an agreement that is fair and equitable for each party. However, we are careful to clearly advise clients that any pet visitation agreement is not binding and enforceable through the court.

We will place language in the Judgment of Divorce that it is the parties’ intent to follow the spirit of their agreement. It is the hope that with these statements in the Judgment of Divorce the parties will voluntarily uphold the terms of their agreement.

In summary, until such time as our laws recognize pets as more than personal property, pets remain divisible by the courts as personal property. And no matter how creative the parties and their attorneys could be in drafting a pet visitation agreement, they will likely not be enforced by any court in the State of Michigan.

IF YOU ARE READY TO MOVE FORWARD, CALL SCHMITT LAW, PLLC FOR ASSISTANCE. GRAND RAPIDS COLLABORATIVE DIVORCE ATTORNEY SERVING KENT, OTTAWA, AND ALLEGAN COUNTY.

My Spouse Says…Common Misconceptions of Divorce

June 13, 2022 By Laurie Schmitt

In the initial interview, it’s common for clients to share with Schmitt Law, PLLC statements made by their spouse that the client considers truthful.

The following are just a few statements that Schmitt Law, PLLC has heard over the years, and the truth behind those statements.

Statement: I will not be awarded one half of the assets of the marriage because I was not employed outside of the home, or I earned less than my spouse.
Truth: When it comes to the court dividing assets of the marriage, it does not matter that you did not work outside of the home, or that you earned less than your spouse. It takes a team to build the marital dynasty, and more often than not that dynasty is divided equally at the time of the divorce.

Statement: I am not entitled to any portion of my spouse’s retirement account or pension earned during the marriage.
Truth: If the retirement account or pension was acquired during the marriage, then it is a marital asset that will be divided equally at the time of the divorce.

Statement: I am not entitled to any portion of my spouse’s business interest.
Truth: If the business was built during the marriage, it will be classified a marital asset, and remains equally divisible between the parties.

Statement: I will not be awarded custody of the children or parenting time with the children because my spouse makes more money.
Truth: The court does not make custody and parenting time decisions based on incomes of the parties. It looks to the best interest factors when making these important decisions – what is in the best interest of the children. In order to equalize the incomes of the parties, child support will be calculated based on the parties’ incomes.

Statement: I will be responsible for one half of my spouse’s student loans acquired during the marriage.
Truth: The courts do not expect one party to be financially responsible for the other party’s student loans. If you or your spouse has a student loan in your name, you or your spouse will be held responsible for payment of this debt post-divorce.

Statement: I will be responsible for all of my medical bills acquired during the marriage because they are in my name.
Truth: Courts look at medical bills acquired during the marriage as marital debt. These debts are treated as any other marital debt and are equally divisible between the parties.

Note, these are complex issues that may have different answers and outcomes based on the specifics of your case. For the purposes of this blog, I have given basic answers. However, there may be much more to the story. Also, don’t assume your spouse knows the law. Seek a consultation with an attorney to obtain answers to your legal questions.

GRAND RAPIDS COLLABORATIVE DIVORCE ATTORNEY SERVING KENT, OTTAWA, AND ALLEGAN COUNTY.

If you would like to learn more about divorce actions, contact Schmitt Law, PLLC. I will meet with you to discuss your divorce and its potential impact on your family, finances, and future. Please reach out to our office for knowledgeable advice regarding your concerns about divorce, custody, parenting time, child support, and spousal support. Contact Schmitt Law, PLLC at (616) 608-4634 for a consultation today. Or, contact us online to book a consultation.

Will The Judge Order Spousal Support In My Divorce Case?

June 8, 2022 By Laurie Schmitt

Every client wonders how they will financially survive during and after a divorce. During the consultation the two questions Schmitt Law, PLLC receives most often are “will I receive spousal support” and “how much will I receive”.

Many factors are considered by the court as relevant in determining whether spousal support should be awarded. If the parties are unable to reach an agreement on the amount and length of time spousal support will be paid, the issue must be decided by the judge.

The judge will review the following factors when making their decision:

THE PAST RELATIONS AND CONDUCT OF THE PARTIES.
- It is important to note that the fault of a party or basis for the breakdown of the marriage is a relevant factor in awarding spousal support, even though Michigan is a no-fault state.
THE LENGTH OF THE MARRIAGE.
- The longer you have been married, the more likely the court is to award spousal support.
THE ABILITY OF THE PARTIES TO WORK.
- The court is more likely to award spousal support to a party who can’t work or is unlikely to find work. Spousal support may be short term to give the person time to finish school or gain job skills.
THE SOURCE OF AND AMOUNT OF PROPERTY AWARDED TO THE PARTIES.
- When deciding whether one party needs spousal support, courts consider the type and amount of property each party is getting in the divorce.
THE AGE OF THE PARTIES.
- An older person who has not worked during the marriage is more likely to need spousal support. But, if the other spouse is retired and living on a fixed income, that will weigh against awarding spousal support.
THE ABILITY OF THE PARTIES TO PAY ALIMONY.
- The court will balance how much the paying spouse can earn with the other spouse’s ability to support her or himself.
THE PRESENT SITUATION OF THE PARTIES.
- The court will consider facts such as your earning potential, career prospects, and issues involving your children.
THE NEEDS OF THE PARTIES.
- The court will consider the current and future needs of the spouse who may receive spousal support compared to their age, health, and ability to work.
THE HEALTH OF THE PARTIES.
- A spouses’ health is relevant if it affects his or her ability to work and meet their personal needs.
THE PRIOR STANDARD OF LIVING OF THE PARTIES AND WHETHER EITHER IS RESPONSIBLE FOR THE SUPPORT OF OTHERS.
- Your standard of living during your marriage is a starting point for deciding whether spousal support should be awarded to either spouse. If divorce means one spouse will stay at the marital standard of living and the other will not, the court may use spousal support to equalize things between the parties.
GENERAL PRINCIPLES OF EQUITY (FAIRNESS).
- The court may consider any other factor they deem necessary in your specific situation.

The court will make a decision regarding the award of spousal support based on the above factors. The court may also consider anything else the court deems important and relevant in awarding spousal support. The court may not give the same weight to each factor when making their decision. However, the court must make findings on each relevant factor if one party requests spousal support.

HOW IS SPOUSAL SUPPORT PAID?

Spousal support can be paid monthly, for a specific period of time as agreed upon by the parties or determined by the court. It also can be paid as a sum certain amount to be paid either in a lump sum (one-time payment), or over a period of an agreed time.

CONSIDERING DIVORCE? LEARN YOUR OPTIONS WITH SCHMITT LAW, PLLC. GRAND RAPIDS COLLABORATIVE DIVORCE ATTORNEY SERVING KENT, OTTAWA, AND ALLEGAN COUNTY.

Contemplating a divorce can be one of the hardest decisions to make in life. There are many complexities involving the divorce process, making it overwhelming for most. However, know that you are not alone, and help is available. At Schmitt Law, PLLC we are here to answer your questions, ease your concerns, and protect your rights. To book a consultation, contact Schmitt Law, PLLC online or by calling (616) 608-4634.

Divorce

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