Laurie Schmitt Family Law

W. Michigan family law specializing in Collaborative Divorce

616.608.4634

Divorce

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.

Marital Property versus Separate Property

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When is property considered separate property, and therefore not divisible in a divorce?

Courts make the distinction between marital property and separate property.  Marital property is simply property acquired during the marriage.  However, the Michigan statutes fail to define separate property.  Nevertheless, courts typically adopt the rule that separate property is property that is not divisible in a divorce because it was owned prior to marriage or acquired during marriage through a gift or inheritance.  If it was owned by a party prior to marriage, it normally will be awarded to that party.

But, there are times when separate property can be divided in a divorce.  Michigan case law supports the proposition that property claimed by one spouse to be separate property may be divided if the other spouse meets on of two statutory tests:

  • Contribution Test: that the claimant contributed to the “acquisition, improvement, or accumulation of the property” MCL 522.401.
  • Need Test: that the award to the claimant out of marital assets is “insufficient for the suitable support and maintenance” of the claimant and any children in their care.  MCL 552.23.
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What happens if you received an inheritance during the marriage?  If you receive an inheritance while you are married, and want that inheritance to remain separate property, you must never co-mingle it.  What does this mean?  It means that once you have co-mingled it with joint property, you cannot separate it.  It’s like making a cake.  Once the ingredients have been mixed together, you cannot separate them out, as they are indistinguishable.  Hence, if you want to protect an inheritance, you need to maintain it as separate funds.  Once the funds have been co-mingled, it will likely be considered marital property.

If you find yourself in the midst of a divorce, and have received an inheritance, or owned substantial property prior to your marriage, you need to know how to protect your property during your divorce.  As this is a complex subject, you should contact a family law attorney who can provide you with a legal opinion based off your specific facts.