Divorce

Do I Have To Return My Engagement Ring and Wedding Ring If We Get a Divorce?

July 15, 2022 By Laurie Schmitt

You and your spouse have filed for divorce. And you each want to keep the engagement ring and wedding rings. So, who really gets to keep the engagement ring and wedding rings now?

WILL I BE REQUIRED TO RETURN MY ENGAGEMENT AND WEDDING RING?

In Michigan, you must return an engagement ring if you did not get married. Why? Because the engagement ring was as gift conditioned on the marriage taking place. So, if there was no marriage, the ring must be returned.

If the marriage took place, the engagement ring and wedding ring are considered gifts, and they do not need to be returned even though you are now getting a divorce.

It does not matter who was at fault for the marriage ending. The engagement ring is a conditional gift, conditioned on the marriage. If there was a marriage, then the condition was met, and you will not be required to return the engagement ring or wedding ring. These rings would not be divided during the divorce and would remain the property of the person who received them.

DOES IT MATTER HOW MUCH THE RINGS COST?

No. It also does not matter how much the engagement ring or wedding ring cost. The same rules apply. The rings remain the property of the person who received them.

WHAT IF WE FINANCED THE ENGAGEMENT RING OR WEDDING RING?

If the engagement ring and/or wedding ring was financed, and a balance remains on that loan, then the loan follows the jewelry. This means that if there is still money owed on either of the rings, and you want to retain them, then you will be responsible for the monies owed on the ring(s). Why? Because of equity and fairness. Of course, you and your spouse can voluntarily agree to any arrangement you wish regarding the debt. However, most judges would say that if you want to retain personal property that is financed, then you retain the responsibility of the loan.

PROTECT WHAT MATTERS

Schmitt Law, PLLC will work hard to negotiate a divorce settlement that equitably divides your assets, with particular attention to the property that means the most to you. We invite you to contact us today by completing our online contact form, or calling us at (616) 608-4634 to schedule a consultation.

Child Custody – The Best Interest Factors

July 13, 2022 By Laurie Schmitt

Child custody and parenting time can be two of the most difficult issues to address for parents who are divorcing, or unmarried parents.

It’s important that parents understand that custody and parenting time decisions are determined by the judge. In making a ruling on custody and parenting time, the judge is concerned with what is in the best interest of the children, and will review the best interest factors.

The following are the best interest factors with sample questions under each factor. These questions will provide you with an idea of what the judge is reviewing under each factor.

1. The love, affection and other emotional ties existing between the parties involved and the child. (A)

To whom is the child more closely bonded?
When the child has a problem, to whom does the child speak?
When the child has a triumph, to whom does the child speak?
Who spends more hours per day with the child?
Who prepares the child’s meals?
Who has the ability to separate the child’s needs from their own and to empathize with the child?
To whom does the child openly show signs
How does the child relate to each parent?

2. The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any. (B)

Who bathes and dresses the child?
Who stays home from work when the child is sick?
Who takes responsibility for involvement in academic affairs?
Who takes responsibility for involvement in extracurricular activities?
Who disciplines the child?
Who uses preferable discipline techniques?
Who has preference because of the other’s verbal abuse, substance abuse, or arrest record?
Who has preference because of the ability to provide the child access to an?
extended family?
Who has been most consistent in the guidance of the child as it relates to their education and faith?

3. The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs. (C)

Who buys the groceries, plans and cooks the meals?
Who makes purchases for the child?
Who attends to special needs of the child?
Who has greater earning capacity?Who adjusts working hours based on the needs of the child?
Who has certainty of future income?
Who has the ability to provide insurance for the child?
Who attends classes for professional involvement?
Who has requisite knowledge to meet the needs of the child?
Who has kept up vaccinations and daily hygiene?
Who schedules and takes the child to medical appointments?
Who schedules and takes the child to dental appointments?
Who arranges for and supervises child care?

4. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity. (D)

Who has provided the greatest sense of stability of residence for the child?
Who is more likely to provide stability in the future?
Who can provide a safe environment?
Who can provide continuity of the child’s overall custodial environment?

5. The permanence, as a family unit, of the existing or proposed custodial home or homes. (E)

In whose custody will the family unit not be split?

6. The moral fitness of the parties involved. (F)

Here, the focus is not to punish a parent. Rather, it is on the effect the parties’ behavior has had, or will continue to have on the child, and how the individual functions as a parent. For example:
Who has priority as a result of the other party having an extramarital affair known by the children?
Has either party engaged in any of the following conduct:
Verbal abuse
Drinking problem
Poor driving record
Physical or sexual abuse of the child
Other illegal or offensive behaviors.

7. The mental and physical health of the parties involved. (G)

Does either party have a physical or mental health problem that significantly interferes with the ability to safeguard the child’s health and well-being?
Age of contestant compared to age of the child—would energies of the child overwhelm the contestant?

8. The home, school, and community record of the child. (H)

Who can provide leadership to attend school?
Who can provide leadership in extracurricular activity participation?
Who is actively involved in school conferences, transportation, and attendance at school events?
Who can more adequately assist reducing the necessity for other agency involvement (the juvenile court, the DHS), or if another agency is involved, who can cooperate more fully?
Who can more adequately assure the child’s access to friends and peers useful for the child’s development?
Who can more adequately plan and supervise the child’s undertaking of home responsibilities that are appropriate to the child’s age and circumstances?
Who takes responsibility for completion of school assignments?

9. The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference. (I)

This is relevant only if the child appears mature enough and capable of expressing with whom they prefer living, absent the product of manipulation or coercion.

10. The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. (J)

Who can best cooperate with an appropriate parenting time schedule by the other party? Who is least likely to disparage the other parent in the presence of the child based upon past performance?
Has either party actively sought to alienate the child from the other parent?

11. Domestic violence, regardless of whether the violence was directed against or witnessed by the child. (K)

Have there been incidents of violence in the home by any party against any party? If so, has there been a police report, arrest or conviction? Has there been a pattern of violence whether reported or not reported?

12. Any other factor considered by the court to be relevant to a particular child (L)

Who can most likely address the special needs of the child?
Has either parent threatened to kidnap the child?
Does either parent spend excessive time traveling for the child?
Does either parent have a record of failure to exercise parenting time, failure to notify, or failure to return the child?
Who has responsibility for the actual and proposed child care arrangements?

CUSTODY ATTORNEY

At Schmitt Law, PLLC, we help parents work together to create a parenting plan that is in the best interests of your children. Through mediation, collaboration, or litigation, if necessary, our knowledgeable Michigan family law attorney will be your advocate and help you through this difficult time. To schedule a consultation or learn more about our services, contact us online or call (616) 608-4634.

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 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.

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